Transgender residents sue over Wisconsin's Medicaid rule

MILWAUKEE — Two Wisconsin residents who want gender reassignment surgeries paid by Medicaid filed a federal lawsuit against the state Monday, contending their denials of service are discriminatory and violate the Affordable Care Act.

The lawsuit from Cody Flack, a 30-year-old transgender man, and Sara Ann Makenzie, a 41-year-old transgender woman, challenges a 1997 state regulation that deems "transsexual surgery" as medically unnecessary and therefore not eligible for Medicaid coverage.

Flack and Makenzie say they suffer from "gender dysphoria" — a medically recognized condition defined by discomfort or distress caused by a discrepancy between the gender that a person identifies as and the gender at birth. Consequences can include severe depression.

"There is no medical or scientific support for Wisconsin's contention that transition-related health care for transgender people with gender dysphoria is "medically unnecessary," the lawsuit states. "To the contrary, there is a strong consensus among medical and mental health professionals that gender-confirming surgical procedures and hormonal treatments are the only safe and effective medical treatments for the gender dysphoria experienced by many transgender people."

Wisconsin is among 10 states that prohibit Medicaid coverage for sex reassignment surgery, according to the lawsuit. Another 18 states and the District of Columbia do provide coverage for those procedures under Medicaid. The remaining states don't have stated policies on the matter.

Medicaid operates with state and federal funds and the attorneys who filed the lawsuit argue Wisconsin's denial of services for Flack and Makenzie amounts to a violation of ACA's prohibition on discrimination based on gender identity.

"I am bringing this lawsuit to get the medical care I need to finally feel like myself, on the inside and the outside," said Flack, a Green Bay resident who began his gender transition to male at 18.

Flack is experiencing "profound depression and emotional distress" and has had suicidal thoughts because he's been unable to fully transition to the gender with which he identifies, the lawsuit said.

"No one should have to struggle just to be who they are," said Makenzie, a Baraboo resident who has been living as a woman since 2012. She has been suicidal and "engaged in self-harming behaviors, including cutting in her genital area," her attorneys say in the lawsuit.

The lawsuit asks a judge to prohibit the state from enforcement of its 1997 rule and declare it discriminatory under the ACA. The lawsuit also seeks compensatory damages for emotional distress and the plaintiffs' attorneys' fees.