The Wisconsin Department of Health Services (DHS) refused to cover Cody Flack’s top surgery.
Top surgery, a common reference for chest reconstruction surgery for transgender patients, is a widely accepted and effective surgical procedure for treating gender dysphoria. But DHS told Flack, who was assigned at birth female but is male, last summer that the procedure isn’t covered by Wisconsin’s Medicaid program. The state contends the surgery is “medically unnecessary.”
Since being denied, Flack has occasional thoughts of self-harming behavior — from removing the breasts himself to suicidal thoughts. He’s acted on neither.
Three hours southwest of Green Bay, where Flack lives, in Baraboo, Sara Ann Makenzie is running into the same problem. Makenzie, assigned at birth male but is female, obtained a $5,000 personal loan from her bank to pay out-of-pocket for chest reconstruction surgery last year because Medicaid wouldn’t pay for it. Since undergoing chest reconstruction — and accepting the financial hardship, she hasn’t been mistreated or harassed as often. But she still needs additional surgeries to further treat her gender dysphoria — and Medicaid won’t cover the associated costs.
Cody Flack (left) and Sara Makenzie (right) filed a lawsuit in federal court challenging a Wisconsin regulation that prohibits Medicaid beneficiaries from obtaining medically necessary treatments for gender dysphoria. Courtesy of Cody Flack and Sara Ann Makenzie
Both Flack and Makenzie rely on Wisconsin Medicaid for health care and Supplemental Security Income for just about everything else. Without government assistance, medical care is untenable. Despite the ban, the Wisconsin Medicaid program does pay for Flack and Makenzie’s hormone therapy. It’s unclear why Wisconsin denied some necessary gender-confirming care.
Now, the two Wisconsin residents are suing DHS over the state regulation that prohibits low-income Medicaid beneficiaries from receiving medically necessary treatments for gender dysphoria. The lawsuit filed in federal court Monday alleges that Wisconsin’s coverage ban violates the Affordable Care Act’s (ACA) non-discrimination provision, the federal Medicaid Act, and the Fourteenth Amendment’s Equal Protection Clause.
“I am bringing this lawsuit to get the medical care I need to finally feel like myself, on the inside and the outside,” said Flack in a statement to ThinkProgress. “I hope to get the treatment I need and to help other transgender people who have suffered because of Wisconsin’s discriminatory policy. Having the court recognize that my health care needs are real will make a world of difference in my life.”
“No one should have to struggle just to be who they are,” added Makenzie. “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.”
“Wisconsin treats its transgender Medicaid beneficiaries as second-class citizens and their transition-related health care needs as ‘unnecessary,’” the lawsuit says.
They are represented by the National Health Law Program, the civil rights law firm Relman, Dane & Colfax PLLC, and the Wisconsin law firm McNally Peterson, S.C.
In 1995, Wisconsin definitively said it wouldn’t cover “[d]rugs, including hormone therapy, associated with transsexual surgery or medically unnecessary alteration of sexual anatomy or characteristics” or [t]ranssexual surgery.” Gender reassignment surgery was categorized similarly to tattoo removal, ear lobe repair, and nipple reconstruction and repair.
Flack and Makenzie are asking that the court issue preliminary and permanent injunctions for any further enforcement of the coverage ban and that they be compensated for harms to their short- and long-term health and well being.
A disproportionate number of transgender people rely on Medicaid for their health care, and face barriers in seeking that care. Wisconsin is one of ten states with explicitly discriminatory Medicaid coverage for transgender health services. Eighteen states and the District of Columbia say they cover services for transgender Medicaid beneficiaries — including Flack’s home state of Pennsylvania. The rest do not explicitly say what their Medicaid policies are. Last fall, two transgender women sued Iowa’s Department of Human Services for banning sex reassignment surgery in Medicaid coverage.
The Trump administration is expected to further weaken health care protections for transgender patients. According to the New York Times, federal officials will rewrite the non-discrimination provision of ACA, known as Section 1557. This is the same rule the Flack and Makenzie’s attorneys are arguing Wisconsin is violating.
“Federal courts, including the Seventh Circuit, have held that federal prohibitions on sex discrimination prohibit discrimination based on gender identity. That’s just as true under Section 1557 as it is under Title IX, Title VII, and other laws,” said National Health Law Program Senior Attorney Abigail Coursolle in a statement to ThinkProgress. “While we are disappointed that HHS is flouting the law and taking a step backwards with its regulations, we are confident the federal courts will find Wisconsin’s ban illegal under federal law and the constitution.”
The Trump administration has been eroding transgender rights on several fronts — from barring transgender people from serving in the military to rescinding guidelines on how schools should accommodate transgender students.
This article has been updated to better reflect Flack and Makenzie’s gender.