A judge sided with transgender workers in a Wisconsin health insurance fight

Posted at 9:45 PM, Sep 20, 2018
and last updated 2018-09-20 23:45:52-04

A Wisconsin federal judge ruled in favor of two transgender women who challenged the state’s insurance ban on coverage for gender-affirming care.

US District Judge William Conley said in his orderthat the exclusion in state employee insurance plans violates federal anti-discrimination laws.

According to their lawsuit, University of Wisconsin-Madison graduate student Alina Boyden and University of Wisconsin Medical School researcher Shannon Andrews suffer from gender dysphoria — the diagnostic term for the distress a person feels when their gender identity does not match the sex they were assigned at birth.

The women — both state employees — sued Wisconsin’s insurance board and employee trust after they were denied coverage for treatment their physicians deem medically necessary, according to court documents.

In its defense, the state relied on a benefits exclusion for “procedures, services, and supplies related to surgery and sex hormones associated with gender reassignment,” according to court documents.

In 2016, the state amended the terms of coverage in employee plans to start offering gender-affirming care in January 2017. Then, two days before the coverage was to go into effect, the state reinstated the exclusion. The state cited a federal court ruling in Texas that halted federal enforcement of anti-discrimination protections under the Affordable Care Act for transgender and gender-nonconforming patients.

The state argued that requiring it to cover such treatment would “insert the State directly into the business of encouraging surgeries meant to conform peoples’ appearances to their own perceived sex stereotypes.”

But Conley said the state’s argument “appears unhinged from reality.”

He said the exclusion constitutes sex-based discrimination in violation of the federal employment law, Title VII, as well as section 1557 of the Affordable Care Act.

He pointed to medical evidence and testimony that not all transgender or gender-nonconforming people need surgery to treat dysphoria. Instead, he said in his ruling, the exclusion encourages sex stereotyping by limiting the availability of gender-affirming treatment, “if not rendering it economically infeasible,” by requiring transgender individuals to maintain the physical characteristics of the sex they were assigned at what he refers to as “natal birth.”

“The Exclusion entrenches the belief that transgender individuals must preserve the genitalia and other physical attributes of their natal birth over not just personal preference, but specific medical and psychological recommendations to the contrary,” Conley said.

“In this way, defendants’ assertion that the Exclusion does not restrict transgender individuals from living their gender identity is entirely disingenuous, at least for some portion of that population who will suffer from profound and debilitating gender dysphoria without the necessary medical transition.”

The state also cited the cost of providing coverage as a reason for restoring the exclusion. The judge pointed out that its own actuarial consultant estimated that the coverage would cost the state about $300,000 in annual costs, amounting to an extra $0.04 to $0.10 per member per month, representing about 0.1% to 0.2% of the total cost of providing health insurance to state employees.

Andrews paid out of pocket for her surgery, a move that she called life-saving.

“I’m pleased the court recognized that denying coverage for my medical care was sex discrimination. I, personally, was lucky to be in a position to have retirement funds and savings I could take out to fund my medical care, but had I been less fortunate I would not be alive today,” said Andrews.

“Today, I feel vindicated the court recognized what the state did was wrong,” she said. “I hope that this will be a powerful signal that trans people are not fair game for discrimination and that our lives and health are not a political football.”

The state did not reply to requests for comment Thursday night.