Metro Weekly

Two Wisconsin residents sue over state’s Medicaid ban on gender confirmation surgery

Wisconsin's Department of Health Services claims transition-related expenses are "medically unnecessary"

Secretary Linda Seemeyer – Photo: Wisconsin Department of Health Services.

Two Wisconsin residents are suing the state’s Department of Health Services over a ban that prohibits transgender Medicaid recipients from obtaining coverage for gender confirmation surgery.

Cody Flack, a 30-year-old transgender man from Green Bay, and Sara Ann Makenzie, of Baraboo, have been told by their primary care physicians that they should gender confirmation surgery as part of their treatments for gender dysphoria.

But even though the surgery has been deemed “medically necessary” by their doctors, they’ve been denied insurance coverage for those procedures under a rule dating back to 1997. That rule classifies gender-affirming surgery as “medically unnecessary,” grouping it with cosmetic procedures like tattoo removal and earlobe repair, reports the Milwaukee Journal-Sentinel.

Following their denial, both Flack and Makenzie sued the Wisconsin Department of Health Services and, specifically, DHS Secretary Linda Seemeyer, for denying them coverage for a medically necessary procedure. Both plaintiffs allege that the 1997 rule is out-of-date, not based on scientific understandings of gender dysphoria, and violates nondiscrimination provisions in Section 1557 of the Affordable Care Act, the Medicaid Act, and the due process guarantee of the Fourteenth Amendment.

“The Challenged Exclusion violates Section 1557’s prohibitions on discrimination in federally-funded health programs, as it discriminates against Mr. Flack, Ms. Makenzie, and other transgender Wisconsin Medicaid enrollees on the basis of sex (including nonconformity to sex stereotypes, gender identity, being transgender, and undergoing a gender transition),” lawyers for Flack and Makenzie write in a brief filed with the court on Monday.

“The Challenged Exclusion, which has no rational or legitimate basis, denies Plaintiffs and similarly situated individuals their constitutional right to equal protection under the laws based on impermissible consideration of sex-based classifications (including nonconformity to sex stereotypes, gender identity, being transgender, and undergoing a gender transition),” they add.

“It further violates the Equal Protection Clause by denying necessary health care to people solely based on their membership in a disfavored group, transgender people, who are subjected to discriminatory treatment based on their membership in that class.”

Flack and Makanzie’s lawyers, with the National Health Law Program, the D.C.-based law firm Relman, Dane & Colfax, and Rock Pledl, from the Milwaukee-based law firm McNally Peterson, are asking the court to stop DHS from enforcing the 1997 exclusionary rule. They are also asking for compensation for emotional distress suffered as a result of the denial, plus legal fees.

“There is no medical or scientific support for Wisconsin’s contention that transition-related health care for transgender people with gender dysphoria is ‘medically unnecessary,’ the brief reads. “To the contrary, there is a strong consensus among medical and mental health professionals that gender-confirming surgical procedures and hormonal treatments are the only safe and effective medical treatments for the gender dysphoria experienced by many transgender people.”

Wisconsin is one of 10 states that deny Medicaid coverage of treatments, whether surgical or hormonal, related to gender transition, according to the lawsuit. In 18 other states and the District of Columbia, Medicaid explicitly covers transition-related surgical expenses, and the remainder of states have no explicit policy either way.

Both Flack and Makenzie say that no one should be denied coverage for a medically necessary procedure.

“No one should have to struggle just to be who they are,” said Makenzie, who, according to the lawsuit, contemplated suicide and “engaged in self-harming behaviors, including cutting in her genital area” as a result of DHS’ denial. Flack, too, has experience suicidal ideation and depression because of DHS’ ban and his inability to pay out-of-pocket for his gender confirmation surgery.

“I am bringing this lawsuit to get the medical care I need to finally feel like myself, on the inside and the outside,” he said in a statement.

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