Judge Issues Injunction Against Wisconsin Policy Excluding ‘Transsexual Surgeries’ From Medicaid Coverage

Photo Credit: George Hodan/Public Domain Pictures

MADISON, Wisc. — A federal judge appointed to the bench by then-President Barack Obama has issued a preliminary injunction against a policy under the Wisconsin Department of Health Services (DHS) that excludes “transsexual surgeries” from Medicaid coverage as they are deemed to be medically unnecessary.

While the state argued that “[t]here is inadequate evidence to conclude that surgical treatments are of proven medical value or usefulness for treating gender dysphoria,” U.S. District Judge William Conley opined on Wednesday that the operations are necessary for at least the two plaintiffs, being that their doctors recommended the procedures, and that denial of coverage “threatens their well-being.”

“[V]isibly nonconforming transgender individuals suffer worse health outcomes and more discrimination than transgender individuals whose appearance aligns with their gender identity. Gender-confirming medical care may decrease mistreatment caused by being visibly gender-nonconforming,” he also wrote.

Conley asserted that exclusion from Medicaid coverage is sex discrimination under the Affordable Care Act as the complainants’ operations would have been covered under different circumstances.

“[I]f breast reduction surgery were deemed medically necessary due to back, neck or shoulder pain, a natal female’s surgery would be covered by Wisconsin Medicaid. However, if breast reduction surgery were deemed medically necessary due to gender dysphoria, a natal female’s surgery would not be covered under the Challenged Exclusion. This is textbook discrimination based on sex,” Conley claimed.

He asserted that the “defendants’ concern about protecting the public health by limiting Wisconsin Medicaid to ‘medically necessary purposes’ is misplaced … , given the substantial likelihood that this interest would be served, rather than hindered, by covering plaintiffs’ recommended surgical procedures.”

As previously reported, the case centered on two plaintiffs with gender dysphoria, who go by the names Cody Flack (a woman who identifies as a man) and Sara Ann Makenzie (a man who identifies as a woman). Both sought coverage for chest reconstruction surgery, and both were informed that Medicaid does not cover their desired operations. Makenzie desired coverage for breast augmentation, and Flack sought coverage for a double mastectomy.

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“Despite his efforts to present as the man he is, he considers the breasts an undesirable visible marker of something he is not—female—that subjects him to mistreatment, social stigma, and related symptoms of gender dysphoria and emotional distress,” the legal complaint claimed of Flack, born female. “At various points in his life, … Flack has felt helpless and has had thoughts of suicide and self-harm because of the presence of his breasts.”

“Although her hormone treatments resulted in some breast growth, those treatments alone provided inadequate for the development of female-appearing breasts. As a result, … Makenzie has been perceived by others to be a man and has consequently experienced mistreatment and harassment,” it said of Makenzie, born male.

Upon belief, “transsexual surgeries” were among six services and procedures listed in a bulletin in the 1990’s that were determined to be medically unnecessary.

On Wednesday, Conley ruled that “the challenged exclusion feeds into sex stereotypes by requiring all transgender individuals receiving Wisconsin Medicaid to keep genitalia and other prominent sex characteristics consistent with their natal sex no matter how painful and disorienting it may prove for some.”

He issued a preliminary injunction against the exclusion, and refused to place a stay on the order, stating that Flack and Makenzie have had an “already-long wait to receive medically necessary surgery for gender dysphoria.”

Read Judge William Conley’s ruling in full here.

It is not yet known whether the State plans to appeal.

As previously reported, Walt Heyer, a man who identified as a woman for eight years until he became regenerated by the Spirit of God, wrote an article in 2017 remarking that allowing those with gender dysphoria to conform their bodies to their psychology does not solve the underlying problem.

“Too many U.S. medical practitioners direct all gender-distressed people toward the extreme measures of conforming the body to the mind, rather than exploring the psychological issues that lie beneath the feelings,” he stated. “Giving powerful hormones and recommending radical surgeries without screening for psychological issues first causes great harm to the patients and their families.”

“All of them have some level of depression, and we’re not treating them,” Heyer also told The Daily Mail in 2015. “We’re just cutting off body parts and giving them a new name and a new gender. … [But] biologically, no one can transport to the other gender. It’s not even possible.”

“God designed man; He designed women,” he said in a video recorded in 2014. “God will redeem the lives of people who struggle with gender identity issues just like I did. He redeemed my life, and I’ve been free from it as a result of that.

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