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A federal court has found that denying transgender state employees health insurance coverage for transition-related medical care is unconstitutional and violates federal nondiscrimination law.
The American Civil Liberties Union, ACLU of Wisconsin, and volunteer attorneys from the law firm Hawks Quindel sued the state of Wisconsin on behalf of two employees at the University of Wisconsin-Madison, who complained after they were denied coverage for transition-related surgical costs, even though their doctors had deemed the surgery “medically necessary” for the purposes of treating their gender dysphoria.
One of the plaintiffs, graduate student Alina Boyden, was forced to forego gender confirmation surgery, while the second, cancer researcher Shannon Andrews, was forced to pay $21,000 in out-of-pocket expenses when she went forward with surgery. Both women claimed that the denial of coverage violated their rights under the Equal Protection Clause of the Fourteenth Amendment, and under several other federal laws prohibiting discrimination based on sex.
On Wednesday, U.S. District Judge William Conley, of the Western District of Wisconsin ruled in favor of the plaintiffs, saying that some of the state’s arguments appear “unhinged from reality.”
“As an initial matter, removing the [transgender] Exclusion does not compel surgery, nor any other treatment for gender dysphoria,” Conley wrote. “Again … a portion of transgender individuals do not suffer from gender dysphoria; and for some portion of those individuals who do, gender confirmation surgery and/or hormone therapy will not be a recommended course of treatment.
“[T]he Exclusion implicates sex stereotyping by limiting the availability of medical transitioning, if not rendering it economically infeasible, thus requiring transgender individuals to maintain the physical characteristics of their natal sex,” he continued.
“In other words, the Exclusion entrenches the belief that transgender individuals must preserve the genitalia and other physical attributes of their natal sex over not just personal preference, but specific medical and psychological recommendations to the contrary.
“In this way, defendants’ assertion that the Exclusion does not restrict transgender individuals from living their gender identity is entirely disingenuous, at least for some portion of that population who will suffer from profound and debilitating gender dysphoria without the necessary medical transition.
“Whether because of differential treatment based on natal sex, or because of a form of sex stereotyping where an individual is required effectively to maintain his or her natal sex characteristics, the Exclusion on its face treats transgender individuals differently on the basis of sex, thus triggering the protections of Title VII and the ACA’s antidiscrimination provision,” Conley concluded.
The plaintiffs and their lawyers celebrated the court’s decision.
“I’m pleased the court recognized that denying coverage for my medical care was sex discrimination. I, personally, was lucky to be in a position to have retirement funds and savings I could take out to fund my medical care, but had I been less fortunate I would not be alive today,” Andrews said in a statement. “Today, I feel vindicated the court recognized what the state did was wrong. I hope that this will be a powerful signal that trans people are not fair game for discrimination and that our lives and health are not a political football.”
Last month, Wisconsin’s Group Insurance Board approved health insurance coverage for gender confirmation surgery for state employees starting on Jan. 1, 2019. In 2016, the board had approved coverage for transition-related surgeries starting in January 2017, but voted to reinstate the exclusion in December, just before the policy went into effect. Wednesday’s decision goes further, declaring the exclusion unconstitutional and circumventing any politically-motivated attempts by the insurance board to reverse or backtrack from its current stance.
The state of Wisconsin also recently lost another case involving coverage for transition-related care in July. In that case, a federal judge ruled that the state cannot bar Medicaid from covering gender confirmation surgery for low-income transgender residents.
“As the court found, depriving transgender people of access to transition-related care is sex discrimination,” Larry Dupuis, the legal director for the ACLU of Wisconsin, said in a statement. “We will continue our work until all transgender people can get the medical care they need, just like other people can.”
The U.S. Department of Justice has launched an investigation into civil rights violations and poor conditions inside Georgia prisons, including the targeting of LGBTQ inmates by prisoners and staff.
On Tuesday, in a news conference, U.S. Assistant Attorney General Kristen Clarke said the Justice Department found "significant justification" to open the investigation, citing dozens of murders, stabbings and beatings, scores of smuggled weapons, and documented gang activity inside state-run prisons.
Last year, 26 people in state-run prisons were killed in confirmed or suspected homicides, and 18 others have been killed this year. Additionally, an investigation by the Southern Center for Human Rights, a nonprofit law firm that monitors conditions in state prisons, last year found that inmates in Georgia state prisons had a suicide rate twice the national average, raising further red flags.
An incarcerated transgender man has filed a lawsuit against the Virginia Department of Corrections for discriminating against him by denying him surgery and other treatment for gender dysphoria.
Jason Yoakam, who has been incarcerated at the Fluvanna Correctional Center for Women in Troy, Virginia, since 2004, was diagnosed with gender dysphoria in 2017, but has repeatedly been denied gender-affirming medical care, including mental health services and gender confirmation surgery. The Department of Corrections also denied Yoakam reasonable accommodations in the form of medical providers who are qualified and well-trained in dealing with patients with gender dysphoria, as well as an insistence that those providers refer to him by his preferred pronouns.
The Virginia Supreme Court this week upheld a lower court's decision ordering Loudoun County Public Schools to reinstate Tanner Cross, an elementary gym school teacher who was suspended after stating that he would defy a recently passed policy requiring teachers to address transgender students by their preferred names and pronouns.
Cross was placed on leave, barred from school grounds, and forbidden from speaking at future board meetings after he spoke out at a school board meeting in May, saying his religious beliefs did not allow him to "lie" by affirming transgender students' gender identities. He later sued the school board, claiming it had violated his right to free speech, as well as his free exercise of religion as guaranteed by the Virginia Constitution.
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