328 F. Supp. 3d 931
W.D. Wis.2018Background
- Plaintiffs Cody Flack and Sara Ann Makenzie are Wisconsin Medicaid enrollees diagnosed with gender dysphoria who seek coverage for gender-confirming surgeries prescribed by their treating providers.
- Wisconsin Medicaid regulation Wis. Admin. Code § DHS 107.03(23)-(24) (the "Challenged Exclusion") bars coverage for "transsexual surgery" and related drugs; it was adopted in 1996 and remains in effect.
- DHS denied prior authorization for Flack’s chest reconstruction and informed Makenzie Medicaid would not cover genital reconstruction; both plaintiffs appealed administratively without success and filed suit seeking a preliminary injunction.
- Plaintiffs’ treating clinicians and retained experts contend the requested surgeries meet WPATH standards and are medically necessary to alleviate severe dysphoria and suicide/self-harm risk; defendants’ experts dispute the sufficiency of evidence of medical benefit and of imminent risk.
- The court considered the traditional preliminary-injunction factors (irreparable harm, inadequate remedy at law, likelihood of success, balance of harms) and heard full argument on plaintiffs’ request to enjoin application of the Challenged Exclusion to these two individuals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Irreparable harm from denial of coverage | Flack and Makenzie face worsening dysphoria, self-harm risk, and no adequate legal remedy; surgeries are medically necessary | Defendants say plaintiffs’ self-reports and records do not show imminent/self-harm risk; medical benefit of surgery not established | Court: plaintiffs demonstrated a material risk of irreparable harm; factor favors injunction |
| Private right of action under ACA §1557 | §1557 incorporates enforcement mechanisms of Title IX/Title VI/etc., creating an implied private right | Defendants asserted §1557 lacks private right of action | Court: §1557 provides a private right (adopts district-court consensus reasoning) |
| §1557 prohibition applies to discrimination against transgender people | Excluding coverage for transition-related surgery discriminates on basis of natal sex and transgender status; analogous to sex-stereotyping cases | Defendants attempt to narrowly define "sex" and argue the exclusion is not sex-based discrimination | Court: exclusion denies medically necessary treatment based on natal sex/transgender status and likely violates §1557 (reasonable likelihood of success) |
| Equal Protection challenge / level of scrutiny | Plaintiffs argue heightened scrutiny applies (sex-based or quasi-suspect class); exclusion reflective of animus and discriminatory impact | Defendants urge rational-basis review and deny targeted animus or vulnerability warranting heightened scrutiny | Court: did not resolve definitively (unnecessary), but found plaintiffs have at least a non-negligible chance under equal protection; heightened-scrutiny arguments persuasive if reached |
| Balance of harms and public interest | Individual health harms outweigh marginal state fiscal concerns; preliminary relief limited to named plaintiffs | State cites public health, fiscal interests and reliance on regulation | Court: balance and public interest favor injunction as to the two plaintiffs; DHS to complete reviews promptly |
Key Cases Cited
- Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Ed., 858 F.3d 1034 (7th Cir. 2017) (standard for preliminary injunction and Title IX sex-discrimination analysis involving transgender student)
- Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (Title VII sex-discrimination scope includes sexual orientation and broader sex-stereotyping principles)
- Bontrager v. Ind. Family and Soc. Servs. Admin., 697 F.3d 604 (7th Cir. 2012) (affirming preliminary injunction to protect access to medically necessary Medicaid care)
- R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 884 F.3d 560 (6th Cir. 2018) (discrimination on basis of transgender status is discrimination because of sex)
- Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (employment discrimination against transgender person is sex-based due to gender nonconformity)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (sex-stereotyping as a form of sex discrimination)
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (statutory prohibitions may reach harms beyond principal evil)
- Romer v. Evans, 517 U.S. 620 (1996) (animus-based laws may fail rational-basis review)
- City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (rational-basis-with-a-bite where animus is shown)
- Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) (older precedent limiting transgender coverage under Title VII; discussed but distinguished)
- Gibson v. Am. Cyanamid Co., 760 F.3d 600 (7th Cir. 2014) (avoid constitutional ruling when statutory grounds resolve dispute)