Relman, Dane & Colfax filed a federal lawsuit on April 30, 2018 against the Wisconsin Department of Health Services on behalf of two transgender Wisconsin residents who have been denied medically necessary care under a discriminatory state regulation that categorically bars coverage for transition-related treatments.

Plaintiffs are Cody Flack, a transgender man from Green Bay, Wisconsin, and Sara Ann Makenzie, a transgender woman from Baraboo, Wisconsin. Each is a low-income person with a disability who relies on Wisconsin Medicaid to provide insurance coverage for health care needs. DHS has denied Mr. Flack and Ms. Makenzie coverage for medically necessary surgical treatments, citing a discriminatory 1997 state regulation that categorically excludes Medicaid coverage for “transsexual surgery” or “drugs, including hormone therapy, associated with transsexual surgery or medically unnecessary alteration of sexual anatomy or characteristics.” Without Medicaid coverage for transition-related treatments, which their doctors have determined are medically necessary to treat gender dysphoria, Mr. Flack and Ms. Makenzie are unable to afford this essential health care.

Wisconsin’s categorical exclusion is inconsistent with the professional consensus that medical treatments for gender dysphoria, including hormonal therapies and gender-confirming surgeries, are safe, effective, and medically necessary for many transgender people. By maintaining its blanket ban in the face of this medical consensus, Wisconsin ignores prevailing standards of care and exposes every transgender Wisconsin Medicaid recipient in need of such care to significant and avoidable harms to their health and well-being.

Plaintiffs challenge the discriminatory regulation as unlawful sex-based discrimination under Section 1557 of the Affordable Care Act; a violation of the federal Medicaid Act’s availability and comparability requirements; and unconstitutional under the Fourteenth Amendment’s Equal Protection Clause.

The Relman, Dane & Colfax litigation team is led by Joseph Wardenski, Jennifer Klar, and Orly May. Relman is co-counseling with the National Health Law Program and McNally Peterson, S.C.

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