Bruce Vielmetti

Milwaukee Journal Sentinel

A federal judge has ordered the state and its insurers to cover transgender employees' transition surgeries.

U.S. District Judge William Conley concluded that there was no legally valid reason to exclude medically necessary care for the workers and called some of the state’s arguments “unhinged from reality.”

The plaintiffs, a University of Wisconsin-Madison graduate student, Alina Boyden, and Shannon Andrews, a researcher at UW School of Medicine, sued in the spring of 2017 after they were denied treatment their doctors had determined was a necessary part of the gender transitions. They were represented by the ACLU of Wisconsin and lawyers from Hawks Quindel law firm.

“I feel vindicated that the court recognized what the state did was wrong," Andrews said in news release from the ACLU.

"I hope that this will be a powerful signal that trans people are not fair game for discrimination and that our lives and health are not a political football.”

The case had been heading for trial, but on Tuesday, Conley found the state's policy violated Title VII, the Affordable Care Act and the equal protection clause of the 14th Amendment.

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Now, the only trial will be over the damages the plaintiffs are entitled to, which is set for Oct. 9. Andrews has already had two surgeries, which she paid for, and seeks reimbursement of those costs. She and Boyden also seek damages for emotional distress.

Though the case did not specifically seek an injunction, Conley may yet decide to issue one after getting more information during the trial, said Larry Dupuis, legal director for the ACLU of Wisconsin.

Even though the state’s Group Insurance Board approved health insurance coverage for gender-confirmation surgery for state employees, effective Jan. 1, 2019, Dupuis said an injunction would offer an extra layer of protection.

An injunction "might be moot, based on policy change, but given sequence of events, we can't be sure. In 2016, they were going to start covering in 2017 and then reversed course.

"This time it was a 5-4 vote by (GIB) board, with two not voting. There's enough uncertainty that we think an injunction is warranted," Dupuis said.

Conley did find that the named individual defendants, officials with the GIB and the Department of Employee Trust Funds, are protected by qualified immunity from paying any damages under the 14th Amendment claim. But damages and costs can be assessed under the ACA and Title VII of the Civil Rights Act of 1964 against the GIB and the ETF.

In July, Conley ruled that two transgender Medicaid recipients in Wisconsin are also entitled to have their gender-affirming surgeries covered by Medicaid.

He cited that decision in Tuesday's ruling. He took particular issue with the state's argument that excluding the surgery does not compel the plaintiffs to adopt "certain cultural stereotypes" or risk adverse consequences.

"To the contrary," the state argued that "to require coverage would 'insert the State directly into the business of encouraging surgeries meant to conform peoples' appearances to their own perceived sex stereotypes.' "

Conley called that position "unhinged from reality" and explained that not all transgender people suffer from gender dysphoria and even among those who do, surgery is not always the recommended treatment.