## Facts

- Wisconsin Medicaid regulations categorically excluded coverage for “transsexual surgery,” related hormone therapy, and certain alterations of sexual anatomy.  
- Cody Flack, a transgender man diagnosed with gender dysphoria, sought Medicaid coverage for chest reconstruction surgery.  
- Sara Makenzie, a transgender woman diagnosed with gender dysphoria, sought Medicaid coverage for genital reconstruction surgery.  
- Plaintiffs alleged the exclusion denied medically necessary treatment recommended by their providers and caused severe psychological distress.  
- Plaintiffs sued the Wisconsin Department of Health Services and its Secretary in her official capacity, seeking injunctive relief.

## Issues

1. Whether plaintiffs were likely to succeed on claims that the categorical Medicaid exclusion violates § 1557 of the Affordable Care Act by discriminating on the basis of sex (including transgender status/gender identity).  
2. Whether plaintiffs were likely to succeed on claims that the exclusion violates the Equal Protection Clause.  
3. Whether plaintiffs faced irreparable harm and satisfied the remaining requirements for preliminary injunctive relief.

## Decision

- The court granted a preliminary injunction barring enforcement of the exclusion against the named plaintiffs as to their requested surgeries.  
- The court found plaintiffs showed a strong likelihood of success under both § 1557 and the Equal Protection Clause.  
- The court found denial of medically necessary treatment for gender dysphoria created irreparable harm, including serious psychological suffering and risk of self-harm.  
- The court held legal remedies were inadequate and that the balance of harms and public interest favored injunctive relief.

## Legal Principles

- A categorical coverage exclusion targeting care sought by transgender individuals may constitute facial sex discrimination under § 1557 when it denies medically indicated treatment based on transgender status/gender identity.  
- Under equal protection analysis, a policy that singles out transgender people for adverse treatment triggers at least heightened scrutiny when the discrimination is sex-based in substance.  
- To justify such a classification, the state must provide an exceedingly persuasive justification; generalized cost or “cosmetic/experimental” characterizations are insufficient when contradicted by medical evidence.  
- Irreparable harm is established where a plaintiff is denied medically necessary treatment for a serious condition and suffers ongoing psychological injury that cannot be adequately remedied by money damages.

## Conclusion

The court preliminarily enjoined Wisconsin from enforcing its Medicaid categorical ban on gender-confirming surgery against the plaintiffs, concluding the exclusion likely constituted unlawful sex-based discrimination under § 1557 and violated equal protection, and that continued denial of medically necessary care would cause irreparable harm.


Flack v. Wis. Dep't of Health Servs., 328 F. Supp. 3d 931 (W.D. Wis. 2018)