Flack v. Wisconsin Department of Health Services

Cody Flack (plaintiff), a transgender Wisconsin Medicaid beneficiary, was denied coverage for gender-affirming care to treat his severe gender dysphoria. Under one of Wisconsin’s Medicaid coverage exemptions (the challenged exemption), surgical and hormonal gender-affirming treatments were not covered if used to treat gender dysphoria, but those same treatments were covered if medically necessary to treat other conditions. The Wisconsin Department of Health Services (DHS) (defendant) administered Wisconsin’s Medicaid program. Flack sued DHS and moved for summary judgment, arguing that the challenged exemption constituted unlawful discrimination in violation of the Medicaid Act and the Equal Protection Clause. Specifically, Flack argued that the challenged exemption violated the availability and comparability provisions of the Medicaid Act because Flack had been denied coverage solely based on his diagnosis and, had he been diagnosed with a different condition for which gender-affirming treatment was medically necessary, the treatments would have been covered. Flack argued that the challenged exemption violated the Equal Protection Clause because it subjected transgender individuals to inferior medical care on the basis of sex. Flack presented substantial evidence that, even before the challenged exclusion went into effect in 1997, the medical community had reached a formal consensus that gender-affirming care was a medically necessary and effective treatment for gender dysphoria. DHS countered, arguing that the challenged exemption was a permissible exercise of DHS’s discretion in administering Wisconsin’s Medicaid program because (1) gender-affirming care was not medically necessary and (2) denying coverage for gender-affirming care helped substantially to contain the cost of Wisconsin’s Medicaid program. DHS did not provide any medical or financial evidence to support either of its claims.