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If you are a transgender Wisconsin Medicaid beneficiary seeking coverage for gender-confirming medical treamtns or a medical provider with questions about how the Court's decision affects you or your patients, please contact attorneys Joseph Wardenski or Orly May at (202) 728-1888.

This class action lawsuit, filed in the U.S. District Court for the Western District of Wisconsin, challenges Wisconsin Medicaid's categorical exclusion on gender-confirming treatments for transgender beneficiaries with gender dysphoria (the "Challenged Exclusion").

Named Plaintiffs Cody Flack, Sara Ann Makenzie, Courtney Sherwin, and Marie Kelly are transgender Wisconsin Medicaid beneficiaries who have been unable to obtain medically necessary care based on this discriminatory exclusion. Plaintiffs, on behalf of themselves and a class of other transgender Wisconsin Medicaid beneficiaries seeking treatments for gender dysphoria, challenge the Challenged Exclusion as a violation of their rights under Section 1557 of the Affordable Care Act, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and the federal Medicaid Act.

In July 2018, Judge William Conley preliminarily enjoined the State's enforcement of the Challenged Exclusion for the two original plaintiffs, Cody Flack and Sara Ann Makenzie. In fall 2018, the firm filed an amended complaint adding the other named plaintiffs and class allegations. Plaintiffs then moved for class certification, and asked the court to expand the preliminary injunction to bar the State from denying gender-confirming treatments to any Medicaid beneficiary.

On April 23, 2019, the Court granted Plaintiffs' motion for class certification and expanded the preliminary injunction to cover all transgender Wisconsin Medicaid beneficiaries needing gender-confirming care during the pendency of the lawsuit. Under the expanded injunction, Wisconsin Medicaid was preliminarily barred from applying the Challenged Exclusion to deny coverage for gender-confirming care to any transgender Wisconsin Medicaid beneficiary, and required to consider all coverage requests for gender-confirming treatments for individual medical necessity. 

On August 16, 2019, the Court granted summary judgment to Plaintiffs on all of their claims, holding that the Challenged Exclusion violates Section 1557, the Medicaid Act, and the Equal Protection Clause. In that decision, the Court permanently enjoined Wisconsin Medicaid from enforcing the exclusion against any member of the class. The Court ordered the parties to submit proposed remedial plans within 14 days of that decision.

The Relman, Dane & Colfax litigation team is led by Joe Wardenski, Jennifer Klar, Orly May, and Alexa Milton. The firm is co-counseling with Abigail Coursolle and Catherine McKee of the National Health Law Program and Robert Theine Pledl of Davis & Pledl, S.C.

Case Citation

Flack v. Wisconsin Department of Health Services, No. 3:18-cv-309 (W.D. Wis.)

Published Decisions

328 F. Supp. 3d 931 (W.D. Wis. 2018) (granting preliminary injunction to two individual plaintiffs)

331 F.R.D. 361 (W.D. Wis. 2019) (certifying class and expanding preliminary injunction to cover all class members)

--- F.Supp.3d ----, 2019 WL 3858297 (W.D. Wis. 2019) (granting summary judgment to plaintiffs and permanently enjoining the Challenged Exclusion)

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