Judge Rules Taxpayer-Funded Medicaid Must Cover Transgender Surgery in Wisconsin

In this May 29, 2014 photo, Denee Mallon, second from left, takes part in the Trans March
Craig Fritz/AP Photo
Dr. Susan Berry

A federal judge has ruled the taxpayer-funded Medicaid program must cover transgender surgery in Wisconsin.

Judge William Conley, of U.S. District Court for the Western District of Wisconsin, an Obama appointee, said a 1997 state regulation that excluded transgender treatments and surgeries from Medicaid coverage violated federal law, including the Affordable Care Act, or Obamacare; the federal Medicaid Act; and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

A press release at National Health Law Program (NHeLP), which joined with other law firms in the class action lawsuit that challenged the exclusion, noted the state did not appeal the ruling “and has agreed to settle the named plaintiffs’ remaining claims.”

The original case involved four plaintiffs with gender dysphoria — all on the state’s Medicaid program — who sought transgender treatments and surgeries but were unable to get the procedures funded.

In his decision in Flack v. Wisconsin Department of Health Services, Conley observed a “consensus within the medical profession (is) that gender dysphoria is a serious medical condition, which if left untreated or inadequately treated can cause adverse symptoms, such as anxiety, depression, serious mental distress, self-harm, and suicidal ideation.”

However, more attorneys and physicians believe doctors eagerly providing cross-sex hormones and transgender surgeries to gender-dysphoric individuals may be committing medical malpractice.

For example, Idaho-based endocrinologist Dr. William Malone told Breitbart News it is “inevitable” that malpractice lawsuits will be brought forward in the cases of individuals with gender dysphoria holding the belief that life-changing physical alterations will make them happy.

“When bad ideas get put into practice, bad outcomes occur, and then the people who have been hurt will seek to hold those who hurt them accountable,” he said, adding:

Given the number of detransitioners coming forward and reporting they weren’t offered adequate counseling to help them explore the underlying causes of gender dysphoria—which could have helped them resolve their distress without the irreversible effects of hormones or surgery—it’s widely anticipated that there will be an avalanche of lawsuits in the near future.

Physicians anxious to be “gender-affirming” are enthusiastically treating gender dysphoria with expensive and life-altering medical interventions and surgeries.

Hacsi Horváth, MA, PgCert, an expert in clinical epidemiology and a “detransitioned” man who lived as a woman for about 13 years, wrote last year at 4thWaveNow of the new industry of gender “affirming” physicians:

Proponents of affirmative care have dealt the deathblow to what little gatekeeping that remains. Their activities could well be described as marketing and recruitment for “being trans.” Patients of any age need only say they think they are really the opposite sex, or wish they were, and affirmative care clinicians are happy to get busy, scheduling surgeries and prescribing lifelong drug regimens. They seem to see themselves as affirmative pioneers, especially those who work tirelessly to provide medical interventions to more and more children and teens, thus creating an iatrogenic illusion from which the kids may never emerge.

At the end of November, over 26,000 females from around the world were seeking financial assistance at crowdfunding site GoFundMe in order to have “top surgery” – or an elective double mastectomy – to appear more masculine.

Nevertheless, the law firms representing the Wisconsin Medicaid recipients are celebrating the outcome of their case.

“We applaud the Wisconsin Department of Health Services for accepting the Court’s rulings and the medical consensus that gender-confirming health care saves lives,” said Joseph Wardenski, counsel at Relman, Dane & Colfax and the lead attorney on the case. “We are delighted that the Court’s decision invalidating Wisconsin’s legally and medically indefensible coverage exclusion is now permanent.”

“This case highlights the importance of strong federal protections against discrimination in health care under the ACA and the Medicaid Act,” said Abigail Coursolle, senior attorney at NHeLP. “As the Court’s well-reasoned decision confirms, federal law guarantees transgender people the right to equal access to medically necessary care.”

The Milwaukee Journal Sentinel reported the plaintiffs will share about $840,000 in damages, and the state will pay about $1.35 million in legal fees to three law firms who handled their case.

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