Named plaintiffs in the class-action lawsuit challenging Wisconsin’s band on gender-affirming treatment for transgender individuals on Medicaid were, standing from left, Courtney Sherwin and Marie Kelly, and sitting from left, Cody Flack and Sara Ann Makenzie. (Photo by Nicole Acosta)

The state of Wisconsin has chosen not to appeal U.S. District Judge William Conley’s Aug. 16 ruling in Flack v. Wisconsin Department of Health Services, a class-action lawsuit challenging the state’s decades-old policy categorically denying gender-confirming health care to transgender Medicaid beneficiaries.

The civil rights law firm Relman, Dane & Colfax, the National Health Law Program and Milwaukee law firm Davis & Pledl announced the decision this morning (Tuesday, Dec. 10), noting that the state has agreed to settle the named plaintiffs’ remaining claims.

The Flack lawsuit, filed in May 2017 against the Wisconsin Department of Health Services and its Secretary, challenged a 1997 Wisconsin regulation that categorically excluded Medicaid coverage for surgical and hormone treatments for gender dysphoria. “During the 22 years the policy was in place, countless transgender Medicaid beneficiaries in Wisconsin were denied coverage for medically necessary gender-confirming health care,” according to a prese statement released by NHLP.

In his 38-page decision, Judge Conley ruled that the challenged exclusion violated Section 1557 of the Affordable Care Act, the federal Medicaid Act and the Equal Protection Clause of the Fourteenth Amendment. The judge, in his ruling, recognized the “consensus within the medical profession that gender dysphoria is a serious medical condition, which if left untreated or inadequately treated can cause adverse symptoms, such as anxiety, depression, serious mental distress, self-harm, and suicidal ideation,” and that “there is no dispute that the challenged exclusion prevents Wisconsin Medicaid from covering the medical treatment needs of those The court entered final judgment for plaintiffs on Nov. 8, permanently enjoining DHS from enforcing the exclusion and ordering the agency to adopt a coverage policy for previously excluded treatments for gender dysphoria.

Joseph Wardenski, Counsel at Relman, Dane & Colfax and the lead attorney on the case, said today, “We applaud the Wisconsin Department of Health Services for accepting the court’s rulings and the medical consensus that gender-confirming health care saves lives. We are delighted that the court’s decision …ok is now permanent.”

Abigail Coursolle, senior attorney at NHeLP and co-counsel on the case, added, “This case highlights the importance of strong federal protections against discrimination in health care under the ACA and the Medicaid Act. As the court’s well-reasoned decision confirms, federal law guarantees transgender people the right to equal access to medically necessary care.”

Co-counsel Rock Pledl congratulated the plaintiffs for “for standing up for their own rights, sharing their stories with the court and improving the lives of countless other transgender Wisconsin residents as a result of this victory.”

Judge Conley first issued a preliminary injunction barring the Wisconsin DHS from denying coverage for gender-confirming surgeries to the two original plaintiffs — Cody Flack from Green Bay and Sara Ann Makenzie from Baraboo — in July 2018. In September 2018, Marie Kelly from Milwaukee and Courtney Sherwin from Janesville joined the suit as plaintiffs, and in April 2019, the court issued a decision certifying the case as a class action on behalf of the estimated 5,000 transgender adults on Wisconsin Medicaid and expanding the preliminary injunction for the entire class.

After the state’s decision not to appeal, plaintiff Cody Flack said, “When I first sought gender-confirming surgery, I simply had my own transition and will to live in mind. This case gave me an opportunity to advocate for more than just myself. I am light years better off having gotten the surgical care I needed, and I’m proud to have had a hand in paving the way for others to receive theirs and find joy and hope in life without gender dysphoria holding them back.

“Simply put, gender-confirming health care save lives.”

Plaintiff Sara Ann Makenzie said the case has allowed her to “finally be the person I am inside.”

She added, “Getting the surgery I needed has turned my life around. I have become confident about who I am and positive with myself and others. I feel phenomenal. Knowing that others won’t have to go through the same struggles I went through feels incredible. We can now rely on a system that will provide us with the health care we need.”

Plaintiff Marie Kelly said, “When I decided to join the case, I knew in my heart that this was not just for me, but for every trans person in the state to have access to transition-related care. Knowing that others will not have to struggle to get the health care they need — and that I’ve helped make that happen — is a very good feeling.

“For trans people, having doctors and nurses that understand you, what you’re going through, and listen to your health needs, is important,” Kelly continued. “In helping me fight for the care I need, this case has helped me to become more of who I truly am and that feels amazing.”

And plaintiff Courtney Sherwin said she is “overwhelmed with joy and happiness for all trans people in Wisconsin. When gender dysphoria is treated, it will help people and save lives. I am honored to be a part of history. Inspiring so many people is the best feeling and accomplishment ever!”

As part of the settlement agreement announced today, DHS will pay damages to the four named plaintiffs and will pay plaintiffs’ attorneys’ fees and costs. Plaintiffs were represented by attorneys Joseph Wardenski, Jennifer Klar, Orly May, and Alexa Milton of Relman, Dane & Colfax; Abigail Coursolle and Catherine McKee of NHeLP; and Rock Pledl of Davis & Pledl.

Wisconsin Medicaid beneficiaries with questions on how the decision affects them can call Joseph Wardenski at 202-728-1888 or email him