U.S. court issues preliminary injunction in victory for transgender Wisconsinites

A U.S. District Court in Wisconsin July 25 issued a preliminary injunction blocking the Wisconsin Department of Health Services from enforcing a categorical ban on medically necessary gender confirming treatments for two Wisconsin transgender residents.

The plaintiffs in Flack v. Wisconsin Department of Health Services are Cody Flack of Green Bay and Sara Makenzie of Baraboo.

Makenzie, in a press statement, said, “The decision made me feel like a whole person, alive and accepted, with so much hope. 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.”

Makenzie and Flack are represented by the civil rights law firm of Relman, Dane & Colfax PLLC, the Wisconsin law firm or McNally Peterson, S.C., and also the National Health Law Program.

The court, with the injunction, has stopped DHS from enforcing the Wisconsin regulation that has prevented low-income transgender people in the state from accessing medically necessary treatments for gender dysphoria.

A news release from NHLP said U.S. District Judge William M. Conley found that the plaintiffs have been harmed by the exclusion and are likely to succeed on the merits of their lawsuit, which says the policy is unlawful discrimination on the basis of sex under the Affordable Care Act’s nondiscrimination provision and the 14th Amendment’s Equal Protection Clause.

Conley, in the Western District of Wisconsin, wrote, that the exclusion "creates a different rule governing the medical treatment of transgender people. Specifically, 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. 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.”

Also, wrote the judge, “Gender-confirming medical care may decrease mistreatment caused by being visibly gender-nonconforming. Likewise, transgender people unable to afford (or otherwise unable to access) gender-confirming surgical procedures are most at risk for discrimination and other harms.”

Attorney Joseph J. Wardenski of Relman, Dane & Colfax, said the court recognized "this antiquated ban violates our clients’ rights. …We are pleased that Judge Conley acknowledged the severe harms this policy has caused to our clients and other transgender individuals who are unable to obtain this critical and often life-saving care.”