On April 23, 2019, a federal court issued a preliminary injunction invalidating Wisconsin’s categorical exclusion on coverage for medically-necessary gender-confirming treatments for transgender Medicaid beneficiaries. The injunction bars enforcement of the discriminatory exclusion, which has been in effect since 1997, to deny coverage for treatments for gender dysphoria. The court also certified the case as a class action on behalf of all transgender Wisconsin Medicaid beneficiaries seeking treatments for gender dysphoria.
In April 2018, Relman, Dane & Colfax and its co-counsel filed the lawsuit, Flack v. Wisconsin Department of Health Services, on behalf of Cody Flack of Green Bay and Sara Ann Makenzie of Baraboo, who had been denied medically necessary gender-confirming surgeries under the blanket exclusion. In July 2018—finding that they were likely to prevail on their sex discrimination claims under Section 1557 of the Affordable Care Act and the federal Constitution and recognizing the significant harm of being denied care—U.S. District Judge William Conley entered an injunction on behalf of Mr. Flack and Ms. Makenzie.
Following that decision, two additional named plaintiffs, Marie Kelly of Milwaukee and Courtney Sherwin of Janesville, were added to the case. The firm then moved to certify the case as a class action and to expand the July 2018 injunction to cover every member of the class.
In a 27-page opinion, Judge Conley granted both motions. He certified the case as a class action on behalf of “all transgender individuals who are or will be enrolled in Wisconsin Medicaid, have or will have a diagnosis of gender dysphoria, and who are seeking or will seek surgical or medical treatments or services to treat gender dysphoria,” and expanded the injunction to cover all members of the class. In the decision, Judge Conley found that “plaintiffs have provided overwhelming evidence that gender-confirming surgical treatments can be medically necessary” and that “the larger medical community considers gender-confirming treatments – including surgery – to be valid aspects of medical care.” The court credited the opinion of plaintiffs’ expert witnesses in concluding that members of the class faced irreparable harm if they remained unable to obtain treatments for gender dysphoria deemed medically necessary by their medical providers.
Under the expanded injunction, Wisconsin Medicaid is required to evaluate transgender beneficiaries’ requests for gender-confirming care based on their individual medical need. Plaintiffs recently filed an affirmative motion for summary judgment on all claims. A trial is set for September 2019.
The Relman, Dane & Colfax case team is led by Joe Wardenski, Jennifer Klar, Orly May, and Alexa Milton. The firm is co-counseling with Robert Theine (Rock) Pledl of Davis & Pledl, S.C. in Milwaukee, and Abigail Coursolle and Catherine McKee of the National Health Law Program.
If you are a Wisconsin Medicaid beneficiary 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 for further information.