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Cody Flack and Sara Makenzie

Flack, left, and Makenzie

The state Department of Health Services can’t bar the use of state Medicaid funds to pay for gender-confirming surgery for two low-income Wisconsin residents who suffer from a particular medically recognized condition, a federal judge ruled Wednesday.

U.S. District Judge William Conley granted an injunction to Cody Flack, a transgender man from Green Bay, and Sara Ann Makenzie, a transgender woman from Baraboo blocking DHS from enforcing a state policy, in place since 1997, which states that Wisconsin Medicaid funds cannot be used for “transsexual surgery” for its low-income clients.

The policy deems that kind of surgery as medically unnecessary and ineligible for Medicaid coverage.

Wisconsin is one of 10 states to categorically bar Medicaid funding for gender-confirming surgery.

For now, the decision applies only to Flack and Makenzie, who sued DHS in April seeking to bar the agency from enforcing the rule for those diagnosed with gender dysphoria, a medically recognized condition defined as the distress felt by the discrepancy between the gender that a person identifies as and their birth gender.

According to Conley’s ruling, the condition can have serious psychological consequences for those who suffer from it, including suicide.

The injunction issued by Conley will allow Flack and Makenzie to have surgery paid for by Medicaid while their case progresses through the courts.

“Both Cody and Sara are thrilled by the decision, which has given them a lot of hope for their futures and their ability to live as themselves without fear of discrimination and stigma,” said Joseph Wardenski, a Washington, D.C., lawyer who represents the two. “Both of them are grateful that the court recognized their medical needs and acknowledged the harms they have suffered from being prevented from obtaining this necessary care.”

A state Department of Justice spokesman did not immediately comment on the ruling.

Conley ruled that Flack and Makenzie have a reasonable likelihood of success on their claim that the state’s policy violates the federal Affordable Care Act on the basis of sex discrimination. The rule, called the Challenged Exception, “creates a different rule governing the medical treatment of transgender people,” Conley wrote, at one point writing that it appeared to be “a straightforward case of sex discrimination.”

“Specifically, Wisconsin Medicaid covers medically necessary treatment for other health conditions, yet the Challenged Exception expressly singles out and bars a medically necessary treatment solely for transgender people suffering from gender dysphoria,” Conley wrote. “In fact, by excluding ‘transsexual surgery’ from coverage, the Challenged Exception directly singles out a Medicaid claimant’s transgender status as the basis for denying medical treatment.”

The state argued that there was inadequate evidence to conclude that surgery is of proven medical value for treating gender dysphoria.

The state’s arguments appeared “unsympathetic to a medical condition both plaintiffs suffer from,” Conley wrote, and “fails to grasp that not every transgender person requires, or even desires, gender-confirming surgery.”

Not all transgender people have gender dysphoria, and not all who have the condition want surgery. Even then, only a subset will meet the standards that make the surgery medically necessary, he wrote.

“If anything, the Challenged Exception feeds into sex stereotypes by requiring all transgender individuals receiving Wisconsin Medicaid to keep genitalia and other prominent sex characteristics consistent with their natal sex no matter how painful and distorting it may prove for some,” Conley wrote.

In a statement, Makenzie said that Conley’s 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 said.

Wardenski said that Flack and Makenzie can now seek coverage for their surgeries. Flack’s surgeon submitted a prior authorization request a year ago, he wrote, and Conley ordered DHS to make a decision on that request within 10 business days.

Makenzie’s surgeon is expected to submit a prior authorization request to her Medicaid HMO this week, Wardenski said, which must receive a decision within 10 days. He said it’s hoped that both can get needed surgeries within the next couple of months.

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Ed Treleven is the courts reporter for the Wisconsin State Journal.