Addressing discrimination in transgender healthcare coverage in Wisconsin is a matter of trial and error

By Caysi Simpson

When Alina Boyden, a graduate student at UW-Madison, found out that her testosterone hormone levels were spiking, she had to find out why.

Boyden transitioned from male to female over 15 years ago, but for her, just like some other transgender individuals, the treatment doesn’t stop there. She still needs to take testosterone hormone inhibitors as a form of gender-affirming treatment.

Gender-affirming treatment comes in a variety of forms, according to the Center of Excellence for Transgender Health. The Center says that treatment can include hormone therapy, transition surgery, facial hair removal, interventions that change how a patient speaks or communicates, and/or behavioral changes. Different trans individuals have different needs, and so they seek the treatment that best fits them.

In order to find out why her male hormone levels were so high, Boyden went to doctor, but even after trying multiple methods, they couldn’t discover the cause. Boyden’s doctor said that cancer could be linked to a spike like hers, and recommended she see an endocrinologist. At the endocrinologists’s office, however, she was refused help.

“It was just so obvious that they were blackballing trans people. I went in to make the appointment, and the woman was all smiles [saying] ‘oh yeah we’ll make that appointment for you,’” says Boyden.

After looking at Boyden’s chart and seeing that she is transgender, Boyden said the woman suddenly refused to make the appointment.

Boyden is one of many trans individuals who has been barred from medical treatment and access to healthcare due to their trans status.  

Boyden also faced issues paying for her medical needs. The UW Hospital in Madison has a transgender health center, but prior to the Group Insurance Board’s reversal decision in August, Wisconsin state employees couldn’t access the center’s resources.

In the state of Wisconsin, there are about 58,000 transgender and gender nonconforming individuals, according to program director of FORGE transgender advocacy group, Loree Cook Daniels.

According to Wisconsin’s results from the National Transgender Discrimination Survey, around 18 percent of transgender-identified people in Wisconsin are refused basic medical care because of their gender identity or gender expression.

At the federal level, Title VII of the Civil Rights Act prohibits discrimination based on “race, color, religion, sex, or national origin.” However, the legal problem comes into play when discussing if this discrimination is applied to gender identity and gender expression. Gender identity and gender expression can be seen as different from sexual orientation, therefore it is up to the courts to determine if trans people are protected from healthcare discrimination or not.

Sex has typically been referred to as the biological parts one is born with, like a man being born with a penis and a woman being born with a vagina. Gender identity and gender expression are how an individual sees themself, not based on their sexual organs, but through identity. It is also how they choose to outwardly express themselves, such as how they speak, dress, and act, according to Human Rights Campaign.

This is why legal cases depend on how the judge interprets the term ‘sex discrimination’ because gender identity and gender expression are not included in discrimination against race, sex, age, etc. Some judges might see gender identity and expression as included in sex discrimination because they all come down to how a person feels sexually/physically. Other judges might not include it, because sex is solely based on the organs one has at birth.

Boyden, along with cancer researcher Shannon Andrews, filed a lawsuit against the state of Wisconsin in the spring of 2017, challenging the state’s ban on certain types of medical care sought by transgender individuals, according to the American Civil Liberties Union. It was their tenacity and belief in the cause that led to the fight, according to Boyden.

In September 2018, Boyden and Andrews won the fight. The federal court ruled that denying these two women of health insurance violated the Constitution and federal non-discrimination law, according to the American Civil Liberties Union, who assisted the defendants during the trial. The following month, they were awarded $780,000 by the jury in damage-related expenses, according to Boyden.

While this is one case of bravery, the availability of trans health coverage in the state of Wisconsin has fluctuated. In July 2016, the Group Insurance Board (GIB) in Wisconsin voted to remove the exclusion on “benefits and services related to gender reassignment or sexual transformation,” according to their meeting minutes.

This falls in line with Section 1557 of the Affordable Care Act, set in place by the Obama Administration, which prohibits discrimination in access to healthcare on the basis of transgender identity.

In August of 2016, Wisconsin, under leadership of Scott Walker, joined Texas, Nebraska, Kentucky and Kansas in a multi-state lawsuit against the Obama Administration over Section 1557.

On December 30, 2016 the GIB held a secret meeting in which they again added the exclusion to transgender healthcare. The following day, the federal judge in Texas working on the multi-state lawsuit issued a temporary restraint against the Affordable Care Act’s demand to prohibit transgender discrimination in health insurance.

Fast forward two years to August 2018, when the Wisconsin GIB narrowly reversed their earlier position on transgender health coverage on a 5-4 vote. Employees working for the state of Wisconsin can once again receive health coverage for both hormone treatment and medically necessary gender reassignment surgery. This victory falls in line with the September courtroom win for Boyden and Andrews.

People in the state of Wisconsin who aren’t state employees rely on either private or public insurance to cover medical expenses, or they have no insurance at all. Therefore, they aren’t guaranteed protection from discrimination and rejection of cost coverages for necessary gender-affirming therapies or treatments.

A small number of states in the U.S. have enacted laws that bar gender-transition exclusions from Medicaid and private health insurance coverage, but Wisconsin is not among them. There is currently no statewide prohibition against discrimination on the basis of gender identity and expression in the workplace, housing or in public accommodations (such as restrooms), according to Abby Churchill, a pro bono attorney with Trans Law Help Wisconsin.

During Wisconsin’s 2017-2018 legislative season, amendments were submitted that would change existing state anti-discrimination statutes that prohibit discrimination based on gender identity or gender expression in employment, housing, public accommodation, public education, insurance coverage, and other regulated areas. The bills were designed to include both the terms ‘gender identity’ and ‘gender expression’ as protected clauses to go alongside sex, race, age, etc.

As of March 2018, Assembly Bill 418 and Senate Bill 328 both failed to pass pursuant to Senate Joint Resolution I, according to the Wisconsin State Legislature’s website. This means that the state of Wisconsin did not address making any changes to its bills barring discrimination for transgender people on any platform, including health insurance.

There is a long way for the state of Wisconsin, and the nation, to go before trans individuals can overcome the current discrimination they face not only in access to healthcare coverage but in housing, work and other areas of society as well.

“Another place that we could easily see some improvement for the trans and non-binary communities is through removing the requirement that surgery occurs in order to change one’s gender marker on their birth certificate,” says Churchill.

Hope for equal treatment and access to healthcare comes from the courts and municipalities, but also it will take perseverance from people like Alina Boyden and Abby Churchill, who want to make sure trans people know their rights and know that their rights, bodies, and health matter.  

Wisconsin attorney creates group to help Trans people get legal help 

Abby Churchill, a pro bono attorney with Trans Law Help Wisconsin, started the organization after the 2016 presidential elections. According to Churchill, she posted to Facebook letting the transgender community knew that she was available for legal questions and advice someone might have regarding the name-changing process.

“The post was shared widely, and I began to receive messages, emails, and phone calls from all over the country,” says Churchill. 

After meeting with some professionals in the LGBTQ community to talk about the possibility of starting a legal clinic to address these questions she was receiving, Trans Law Help Wisconsin was created.

This group hosts quarterly, pro-bono clinics where people can learn more about the name and gender change process on various identity documents. At these clinics, volunteers are available to answer questions that people might have about their forms. In addition, Churchill and her team put together different resources to help trans people get the legal help they need, whenever they need it. 

For more information, visit their Facebook page here.

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