Wisconsin’s Medicaid policy banning transgender health coverage is in peril after a federal judge ordered the state to grant two residents gender-affirming surgeries under the program July 25.
Wisconsin likely violated the Affordable Care Act when it denied Cody Flack and Sara Makenzie surgeries, ruled the U.S. District Court for the Western District of Wisconsin.
Judge William Conley entered a preliminary injunction that prohibits the Wisconsin Department of Health Services (DHS) from banning gender-affirming surgeries.
“Wisconsin Medicaid covers medically necessary treatment for other health conditions, yet the Challenged Exclusion expressly singles out and bars a medically necessary treatment solely for transgender people suffering from gender dysphoria,” Conley wrote. “In fact, by excluding ‘transsexual surgery’ from coverage, the Challenged Exclusion directly singles out a Medicaid claimant’s transgender status as the basis for denying medical treatment.”
Wisconsin is among 10 states with Medicaid policies that exclude transition-related coverage. The ACA’s 1557 Anti-Discrimination Protections require Medicaid programs to cover gender-affirming care. That includes transition-related surgeries and hormones.
Still, these states have failed to comply with federal law by denying Medicaid coverage to trans people.
Flack and Makenzie suffered intense anguish and emotional pain as a result of being denied medically-necessary care by DHS, their complaint argues.
Flack identified as a boy since childhood and transitioned in his teens. DHS denied the surgery his doctors deemed medically necessary, resulting in severe depression. Makenzie was also denied coverage. She paid for her own surgery the first time, but a second procedure was also denied, causing her extreme duress. Her win in court marks a new chapter, however.
“The decision made me feel like a whole person, alive and accepted, with so much hope,” she said in a statement. “I want this decision to give other transgender people what it gave me: hope that they have options and a path forward to living and being accepted as who they are.”
The preliminary injunction puts the state ban on transition-related procedures into question.
Jeremy Leaming, director of communications for the National Health Law Program, which represented Flack and Makenzie, hopes the ruling will be expanded to include all transgender Iowans covered by Medicaid.
“Medicaid is not truly Medicaid if it not accessible to everyone,” Leaming told INTO.
In June, an Iowa District Court overturned the state’s Medicaid ban, paving the way for coverage for trans Iowans. But Iowa Attorney General Tim Miller has appealed the ruling, and a stay has been granted in that case.
The bottom line, say LGBTQ advocates, is that chipping away at protections which were supposed to be covered under the ACA is a long and complicated path, with state laws contradicting the federal healthcare mandate.
“Either way, one would have thought that the really strong statement from the ACA and through the Obama administration’s clear guidance about what this means, that we wouldn’t still be worrying about this,” said Naomi Goldberg, policy and research director at the LGBTQ think tank the Movement Advancement Project.