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Judge nixes Wisconsin Medicaid ban for sex reassignments

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MADISON, Wis. (CN) – A federal judge in Wisconsin ruled Friday that the state cannot deny Medicaid coverage for sex-reassignment surgeries and other hormonal procedures, finding they are medically accepted and effective treatments.

The lawsuit against the Wisconsin Department of Health Services, or DHS, was filed by Cody Flack of Green Bay and Sara Ann Makenzie of Baraboo back in April 2018. The plaintiffs challenged a 1997 amendment to state Medicaid regulations that excluded coverage for “drugs, including hormone therapy, associated with transsexual surgery,” deeming them “medically unnecessary.”

Flack, a transgender man, and Makenzie, a transgender woman, both suffer from severe gender dysphoria. They argued that the exclusion violates the Affordable Care Act, the Medicaid Act and the due process and equal protection clauses of the 14th Amendment.

U.S. District Court Judge William Conley agreed with Flack and Makenzie in July 2018 and issued a preliminary injunction ordering the state to cover their sex-reassignment surgeries.

In the meantime, during which the state health department appealed Conley’s injunction, two more transgender women, Marie Kelly of Milwaukee and Courtney Sherwin of Janesville, joined the suit, and Conley certified it as a class action in April.

Conley followed up his previous preliminary injunction with a permanent one on Friday, writing in a 38-page ruling that “the court found defendants’ argument less than persuasive before and that has not changed.”

The judge explained that the dated rationale asserting that sex reassignment and hormonal procedures for transgender individuals suffering from gender dysphoria are medically unnecessary “is no longer reasonable.”

“Even at the time the challenged exclusion became effective in 1997, DHS’s predecessor did not conclude that the excluded services were experimental, ineffective or unsafe,” Conley said. “Moreover, at the time of implementation, DHS’s predecessor conducted no systematic study or review of the available medical literature to conclude that the excluded services were not medically necessary, nor can defendants point to any now.”

DHS, according to ruling, never undertook any study or review of the costs associated with enforcing or amending the exclusion between the time it became effective and when Flack and Makenzie’s suit was filed.

The judge noted in his opinion that the medical profession, including the American Medical Association, Endocrine Society, American Psychiatric Association and others, “have already endorsed gender-confirming surgeries as medically accepted, safe, and effective treatments for gender dysphoria.”

He also stated the DHS’s own medical providers, who make clinical coverage determinations for Wisconsin Medicaid, have acknowledged that sex-reassignment procedures can be medically necessary and that the exclusion “conflicts with current medical practice.”

“Here,” Conley wrote, “there is no dispute that the challenged exclusion prevents Wisconsin Medicaid from covering the medical treatment needs of those suffering from gender dysphoria.”

Conley also pointed out that many procedures such as breast reconstruction, which both Flack’s and Makenzie’s doctors cleared, are already covered when treating other medical conditions outside the realm of sex reassignment, making the exclusion sexually discriminatory on the basis of diagnosis.

State officials’ defenses of “containing costs and protecting public health in face of uncertainty” did not pass muster for Conley, who found that they “do not meet their burden of demonstrating that either justification was genuine.”

On the argument of cutting costs, Conley brought up the defendants’ own calculation that removing the exclusion would cost between $300,000 and $1.2 million annually, “which actuarially speaking amounts to one hundredth to three hundredth of one percent of the state’s share of Wisconsin Medicaid’s annual budget.”

Wisconsin Medicaid, according Friday’s ruling, has a $9.7 billion budget, of which the state gets a $3.9 billion share. The program covers about 1.2 million people annually.

The parties will have a scheduling conference on Aug. 27 with U.S. Magistrate Judge Stephen Crocker to determine how the case proceeds.

The plaintiffs’ lead attorney, Joseph Wardenski with the Washington, D.C. firm Relman, Dane & Colfax, applauded the court’s ruling.

“We are pleased with the court’s decision that Wisconsin Medicaid’s categorical coverage exclusion on gender-confirming health care violates federal law and the rights of transgender Wisconsin Medicaid beneficiaries,” he said. “We plan to submit a plan for remedial relief to the court by the end of the month to ensure that all transgender Medicaid beneficiaries in Wisconsin can access the health care they need.”

Conley issued another injunction last September in a similar case brought by two transgender state workers challenging the state Group Insurance Board’s denial of their gender-confirmation procedures under state workers’ Uniform Benefits adopted by the board. The judge found that there was no reasonable legal basis for denying the procedures in that suit as well.

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