Flack v. Wisconsin Department of Health Services

Cody Flack and Sarah Ann Makenzie (plaintiffs) were transgender citizens of Wisconsin seeking gender-confirmation surgeries—a double mastectomy and genital-reconstruction surgery, respectively. Flack and Makenzie were diagnosed with gender dysphoria, and the incongruence between their genders and their physical traits caused great personal distress. The World Professional Association of Transgender Health included gender-confirmation surgeries as possible treatment options for gender dysphoria. Both Flack and Makenzie suffered from mental-health issues as a result of their dysphoria, and Makenzie’s therapist reported a risk of self-harm if action was not taken. Both individuals consulted with surgeons and provided letters of support from their primary-care providers, therapists, and other medical specialists. Both Flack and Makenzie met the criteria for their respective surgeries. However, the procedures were specifically not covered under Wisconsin Medicaid, a program providing funds for medical procedures and treatment and administered by the Wisconsin Department of Health Services (DHS) (defendant). Wisconsin Medicaid’s governing regulations excluded “hormone therapy associated with transsexual surgery,” “medically unnecessary alteration of sexual anatomy,” and “transsexual surgery” from coverage. Flack and Makenzie filed suit in federal court against the DHS, challenging the exclusion as a violation of the Affordable Care Act (ACA). Flack and Makenzie sought a preliminary injunction to prevent the DHS from using the exclusions against requests for insurance coverage. Considering the testimony of Flack’s and Makenzie’s treating physicians and therapists, the court found that Flack and Makenzie sufficiently demonstrated a risk of irreparable harm without the injunction and that any remedy at law would be insufficient in comparison to that harm. The court then addressed the likelihood of the ACA claim’s success.