Metro Weekly

ACLU sues Wisconsin for denying insurance coverage to transgender state employees

Wisconsin has "cruelly backtracked" on its promise to cover gender confirmation surgery, ACLU says

Memorial Union and quadrangle at the University of Wisconsin-Madison – Photo: Vonbloompasha, via Wikimedia.

Wisconsin’s state university system and insurance board refused to provide health insurance to transgender state employees. Now, they’ll have to defend that position in court.

The ACLU of Wisconsin and a team of volunteer attorneys from law firm Hawks Quindel have sued over the refusal to provide health insurance coverage to trans state employees who are seeking to have gender confirmation surgery.

The federal lawsuit was filed on behalf of Alina Boyden, a graduate student at the University of Wisconsin-Madison who works as a teaching assistant, and Shannon Andrews, a cancer researcher at the University of Wisconsin Medical School.

Both women are transgender and were denied coverage for gender confirmation surgery, even though their physicians have deemed the surgery medically necessary as part of their treatment for gender dysphoria.

Because of the denial, Andrews was forced to pay out-of-pocket expenses totaling $21,000 for her surgery, while Boyden has had to go without it.

The ACLU allege in their complaint that the denial of coverage violates their clients’ rights under Title VII’s prohibitions on sex discrimination, under the Equal Protection Clause of the Fourteenth Amendment, and under the Affordable Care Act, which prohibits discrimination based on sex (and previously, prior to a court injunction, discrimination based on gender identity).

Boyden and Andrews’ lawyers say that all three statutes prohibit sex discrimination, which they allege includes “discrimination based on sex stereotypes, gender expression, gender transition, gender identity, and transgender status.”

“The state continues to deny our clients coverage for medically necessary treatment simply because they are transgender, in violation of Title VII of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment,” John Knight, an attorney with the ACLU’s LGBT Project, said in a statement. “All that transgender people like Alina and Shannon are asking for is to be treated like everyone else, and that includes respect and coverage for the health care they need.”

Wisconsin’s Group Insurance Board previously approved coverage for medically necessary transition-related care in July 2016, but then caved to pressure from Wisconsin Attorney General Brad Schimel. The board voted to rescind the benefits in December 2016.

Boyden and Andrews subsequently filed challenges to the exclusion of transition-related care with the Equal Employment Opportunity Commission, alleging that they were being denied benefits that are granted to other state employees.

“The state should not be playing games with its transgender employee’s essential medical needs,” Larry Dupuis, the legal director for the ACLU of Wisconsin, said in a statement. “It has cruelly backtracked on its promise to provide access to care that the medical community agrees is necessary.”

In some ways, the lawsuit mirrors a similar case out of Minnesota that challenged the state’s refusal to provide coverage for gender confirmation surgery for transgender individuals under Medicaid. In November, a district court judge ruled that the ban deprived transgender Minnesotans who rely on Medicaid for their health care of equal treatment under the law.

The lawsuit also comes on the heels of a groundbreaking decision from the 7th U.S. Circuit Court of Appeals — which has jurisdiction over Wisconsin — that discrimination based on sexual orientation or sex stereotyping constitutes sex discrimination.

In that case, involving a lesbian who was denied promotions and eventually fired because of her sexual orientation, the 7th Circuit established a new precedent: that those who do not conform to gender stereotypes are protected from discrimination by Title VII. As such, it is expected that courts in the 7th Circuit would rule that Title VII also applies in the case of the state of Wisconsin’s refusal to provide coverage to Boyden and Andrews.

“Many people can relate to paying into an insurance plan only to be told that the treatment they need is not covered,” Andrews said in a statement. “But when the reason you are denied coverage is because of who you are, it is even more painful. And it’s clearly discrimination.”

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