Ten states are violating the Affordable Care Act (ACA) by denying transition-related coverage to trans people, but two Wisconsin residents are fighting back.
Cody Flack and Sara Makenzie have hit the Wisconsin Department of Health Services (DHS) with a federal lawsuit, claiming the state illegally denied them medically necessary care. That’s because Wisconsin is one of 10 states with Medicaid policies that exclude transition-related coverage.
“No one should have to struggle just to be who they are,” Makenzie says in a statement. “It’s important to me to do my part to help other transgender people, and myself, get the basic medical care we need. Wisconsin needs to know that our lives matter.”
The ACA’s 1557 Anti-Discrimination Protections mandate that Medicaid cover gender-affirming care. That includes transition-related surgeries and hormones.
But at least 10 states have failed to comply with federal law by denying Medicaid coverage to trans people.
“I think many exclusions like Wisconsin’s were enacted many years ago, and they’ve just been on the books, and it may not even be that the states are enforcing them uniformly,” says Abbi Coursolle, senior attorney at the National Health Law Program, which is representing Flack and Makenzie.
According to the complaint, Flack has identified as a boy since age 5 and started his transition at age 18. DHS denied Flack coverage for gender-affirming surgery, which his doctors prescribed as medically necessary.
“Without any other financial means to obtain these medically necessary procedures, Mr. Flack feels hopeless and has experienced profound depression and emotional distress resulting from the denial and his inability to complete these critical steps of his gender transition,” the complaint reads.
In Makenzie’s case, DHS denied her coverage of gender-affirming surgery, according to the suit. She paid for the surgery herself by taking out a loan. The suit claims that DHS is again denying her coverage another transition-related surgery, causing her extreme emotional distress.
DHS declined to comment on the pending litigation.
The lawsuit shines a light on the systemic failure of states to comply with non-discrimination protections in the ACA. Alaska, Wyoming, Nebraska, Iowa, Missouri, Tennessee, Georgia, Ohio, and Maine all exclude trans health coverage in state Medicaid policies.
According to the National Center for Transgender Equality, 18 states and Washington, D.C. either adopted transgender-affirmative coverage or removed their exclusions. An additional 22 states have no specific policy.
The suit comes at a time when the White House has announced plans to rollback Obama-era guidance that accompanied the ACA anti-discrimination protections. That rollback would mean the federal government would no longer investigate trans discrimination complaints in healthcare, leaving enforcement up to the courts.
“While the administration can’t change the law with any new proposed rule, they can encourage further illegal discriminationdiscrimination that is, as this lawsuit highlights, already widespread,” says Dale Melchert, an attorney with the Transgender Law Center, in a statement to INTO.
In other words, transgender people will need to find their own attorneys. That leaves people on Medicaid in those 10 stateswho are ostensibly already on limited incomesthe burden of finding legal representation. And they will be fighting discrimination endorsed by the White House.
According to the Movement Advancement Project, 13 percent of LGBTQ people live in states with transgender Medicaid exclusions.
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