Flack v. Wis. Dept. Of Health Servs.

Facts

Gender dysphoria is a serious medical condition, which if left untreated or inadequately treated can cause adverse symptoms. The DSM-5 contains the psychiatric consensus as to the definition, diagnostic criteria, and features for gender dysphoria. Gender dysphoria refers to the distress that may accompany the incongruence between one's experienced or expressed gender and one's assigned gender. Although not all individuals will experience distress as a result of such incongruence, many are distressed if the desired physical interventions by means of hormones and/or surgery are not available. The current term is more descriptive than the previous DSM-IV term gender identity disorder and focuses on dysphoria as the clinical problem, not identity per se. Adults with gender dysphoria 'often' have 'a desire to be rid of primary and/or secondary sex characteristics and/or a strong desire to acquire some primary and/or secondary sex characteristics of the other gender.' Untreated, gender dysphoria can result in psychological distress: 'preoccupation with cross-gender wishes often interferes with daily activities.' Impairment -- such as the development of substance abuse, anxiety, and depression -- is also a possible 'consequence of gender dysphoria.' Gender dysphoria can be alleviated through living consistently with one's gender identity, including being treated by others accordingly. The World Professional Association of Transgender Health published the seventh version of Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (WPATH), which identifies psychotherapy, hormone therapy, and various surgical procedures as treatment possibilities for gender dysphoria. Before gender-confirming surgery, those with gender dysphoria 'are at increased risk for suicidal ideation, suicide attempts, and suicides.' D contends that even after surgery, gender dysphoria may still result in suicide, self-harm, or serious psychological distress. The parties agree that gender-confirming surgical procedures are not necessary to alleviate gender dysphoria for all transgender people. Ps contend that surgery is the only effective treatment for many transgender people and that gender-confirming surgical procedures are 'safe and effective treatments.' Ds respond that 'there is inadequate evidence to conclude that surgical treatments are of proven medical value or usefulness for treating gender dysphoria.' Medicaid reimburses a substantial portion of a state's expenditures to provide medical services to people whose resources and incomes are insufficient to afford necessary medical services. Wisconsin Medicaid (D) provides coverage for 'physician services,' including 'any medically necessary diagnostic, preventative, therapeutic, rehabilitative or palliative services . . . within the scope of the practice of medicine and surgery' that are 'in conformity with generally accepted good medical practice' and provided by a physician or under one's direct supervision, unless otherwise excluded. D has a budget of approximately $9.7 billion to provide for its roughly 1.2 million enrollees. Approximately 5,000 of those enrollees are transgender, and some subset of this population suffers from gender dysphoria. D clearly stated on its website: For people who need medical interventions such as hormones or surgery, these might be covered under private insurance plans. Currently, Wisconsin BadgerCare, BadgerCare Plus, Medicaid, and State of Wisconsin employee health insurance (ETF) do not cover gender reassignment surgery or drugs related to gender reassignment or hormone replacement. Please contact your health insurance company to learn more details about what services are covered by your insurance. Flack (P) is an adult who suffers from gender dysphoria and identifies as male. Flack (P) is unable to work because of cerebral palsy and other disabilities for which he receives Supplemental Security Income and Wisconsin Medicaid. At birth, Flack (P) was assigned the sex of a female and subsequently raised as a girl. Flack (P) became aware of his male gender at around five years old. As a teenager, Flack (P) began his gender transition by seeing a gender therapist. Flack (P) was unable to complete his transition for several years because he lacked financial resources, was without emotional support, and feared isolation. After relocating to Wisconsin in 2012, Flack (P) resumed gender transition. Flack (P) legally changed his name to Cody Jason Flack and obtained a Wisconsin state identification card, identifying as male. Since August 2016, Flack (P) has also been receiving testosterone hormone therapy under the supervision of an endocrinologist. In October 2016, Flack (P) had his uterus, fallopian tubes, ovaries, and cervix removed through a hysterectomy with bilateral salpingo-oophorectomy. This procedure was paid for by Wisconsin Medicaid to treat dysmenorrhea (lower abdominal or pelvic pain during menstruation) and premenstrual dysphoric disorder (a severe form of premenstrual syndrome). Flack (P) still has female-appearing breasts. Flack (P) contends this causes him severe gender dysphoria. Flack (P) has engaged in 'binding,' which flattens or reduces their appearance but finds the technique extremely painful causing sores, skin irritation, and respiratory distress. Flack (P) has sought a double mastectomy and male chest reconstruction. He consulted with Dr. Clifford King, who determined that Flack (P) met the criteria for a male chest reconstruction under the WPATH Standards of Care. D denied Dr. King's authorization request without reviewing the medical necessity of his requested surgery as 'a non-covered service' and a 'not covered benefit.' Flack (P) appealed and an administrative law judge dismissed the appeal because the Code specifically defines transsexual surgery as not covered by medical assistance. The judge noted that 'the proposed surgery presumably would favorably address Flack's (P) gender dysphoria.' Flack (P) has considered performing the chest reconstruction himself and contemplated suicide. This diagnosis is disputed by Ds. Sara Ann Makenzie (P) is an adult who also suffers from gender dysphoria. Makenzie (P) has also been found to be disabled and receives Supplemental Security Income. Makenzie (P) first identified as female as a child and has been diagnosed with gender dysphoria for most of her life. Makenzie (P) legally changed her name to Sara Ann Makenzie, uses feminine pronouns, wears women's clothing, and has a birth certificate, passport, driver's license, and Medicaid enrollment under her female name. Makenzie (P) has been on hormone therapy and sought breast augmentation surgery. D would not cover that cost and Makenzie (P) took out a $5,000 loan from her bank to pay for the procedure. Makenzie (P) contends that the procedure has been an effective treatment. Makenzie's (P) treating physicians have recommended surgery to create female-appearing external genitalia, specifically a bilateral orchiectomy and vaginoplasty. The parties dispute whether these surgical procedures 'are of proven medical value or usefulness for treating gender dysphoria.' D would not pay for the procedure. Makenzie (P) presented evidence from her current therapists that claim the procedure is medically necessary. As with Flack (P), Ds assert that Makenzie's (P) own self-reports are an insufficient basis to conclude that a serious risk of self-harm exists, let alone that receiving the surgical procedures will reduce or eliminate that risk.'

Issues

Rule of Law

Holding and Decision

Legal Analysis

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