Metro Weekly

Federal court rules Wisconsin must provide health insurance coverage for transgender state employees

Decision bolsters recent move by state insurance board to allow for coverage of gender confirmation surgeries

U.S. Courthouse for the Western District of Wisconsin – Photo: Carol M. Highsmith, via Wikimedia.

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.”

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