## Facts

- Transgender Wisconsin Medicaid beneficiaries diagnosed with gender dysphoria sought coverage for gender-confirming surgeries and related hormone treatment.
- Wisconsin Medicaid regulations categorically excluded coverage for “transsexual surgery” and related services when used to treat gender dysphoria.
- The same procedures and hormones were otherwise covered by Wisconsin Medicaid when medically necessary for other diagnoses.
- Plaintiffs filed a class action against the state Medicaid agency and its leadership challenging the exclusion.
- The court issued a preliminary injunction barring enforcement of the exclusion for the named plaintiffs, later certified a class of similarly situated beneficiaries, and expanded the injunction to the class.
- Plaintiffs moved for summary judgment seeking declaratory relief and a permanent injunction; defendants opposed and submitted expert evidence (which the court allowed).

## Issues

1. Whether the categorical exclusion of gender-confirming surgery and hormone treatment for gender dysphoria constituted sex discrimination under ACA § 1557.
2. Whether the exclusion violated the Medicaid Act’s availability and comparability requirements by denying otherwise covered, medically necessary services to a subgroup of beneficiaries.
3. Whether the exclusion violated the Equal Protection Clause by discriminating based on sex and transgender status without sufficient justification.

## Decision

- The court granted summary judgment for plaintiffs on all claims.
- The court held the categorical exclusion violated ACA § 1557, the Medicaid Act (availability and comparability), and the Equal Protection Clause.
- The court permanently enjoined the state Medicaid agency from enforcing the exclusion and required implementation of a coverage approach allowing individualized medical-necessity determinations.
- The court found the state’s asserted justifications (cost containment and lack of medical necessity/experimental character) unsupported by credible evidence.

## Legal Principles

- A categorical denial of coverage for medically necessary care associated with gender transition, while covering the same services for other diagnoses, constitutes sex discrimination under ACA § 1557.
- Under Medicaid’s availability requirement, a state may not withhold covered services from eligible beneficiaries when those services are medically necessary under the state plan.
- Under Medicaid’s comparability requirement, a state may not provide a lesser scope of benefits to a subgroup of categorically needy beneficiaries based on diagnosis or status when the same services are available to others.
- Policies that discriminate against transgender individuals are treated as sex-based classifications and are subject to heightened scrutiny; the state must show an important governmental objective and a substantial relationship between the classification and that objective.
- Unsupported appeals to cost or generalized assertions about medical necessity do not satisfy heightened scrutiny where the record shows established medical efficacy and differential coverage by diagnosis.

## Conclusion

The court invalidated Wisconsin Medicaid’s categorical exclusion of gender-confirming surgery and related treatment for gender dysphoria, holding it unlawfully discriminated on the basis of sex, conflicted with federal Medicaid benefit requirements, and failed equal protection review, and it entered permanent classwide injunctive relief requiring individualized coverage determinations.


Flack v. Wis. Dep’t of Health Servs., 395 F. Supp. 3d 1001 (W.D. Wis. 2019)