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Godfrey & Kahn Updates

Transgender UW-Madison employees win insurance coverage fight

October 24, 2018

Holding handsWhether the state of Wisconsin should provide insurance coverage to state employees for gender reassignment surgery has been something of a political and legal hot potato over the last two years.

It all started in July 2016, when the state of Wisconsin Group Insurance Board voted to lift a long-time ban on the coverage of transgender medical services. Governor Walker and the state Department of Justice were not enthused and asked the board to reconsider. On Dec. 30, 2016, two days before the ban was to be lifted, the board reversed course and reinstated the ban.

Thereafter, the political gave way to the legal. In April 2017, two transgender women, one a UW-Madison cancer researcher, the other a UW-Madison teaching assistant, brought suit, contending that the ban was unlawful sex discrimination under Title VII and the Affordable Care Act (ACA). The case quickly proceeded and, this past June, the parties filed summary judgment motions. Last month, United States District Court Judge William Conley issued a decision siding with the plaintiffs across the board.

The court concluded that discrimination based on transgender status is a form of sex discrimination, and that because the ban treated transgender individuals differently from cisgender individuals, the protections of Title VII and the ACA were triggered.

Though the coverage issues were resolved by the court’s September decision, the case went to trial earlier this month on damages. The jury awarded the plaintiffs a combined total of $780,000, for emotional distress and out-of-pocket costs they had paid for surgical procedures and hormones.

While the Group Insurance Board has not yet filed an appeal, political machinations are again afoot. This past August, the board decided (on a 5-4 vote) to once again lift the ban. Coverage is slated to kick in on Jan. 1, 2019—unless the board changes its mind before then. With mid-term elections around the corner and the Trump Administration talking in recent days about scaling back Obama-era protections for transgender individuals, further developments seem certain. Keep watching.

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