Wisconsin officially ended its exclusion of transgender-inclusive health benefits for state employees on Jan. 1, 2017.
Alina Boyden, a transgender graduate student at the University of Wisconsin-Madison, put in her request for sex reassignment surgery the next business day.
But less than a month later, the state effectively said never mind.
In a press release dated Feb. 1, the Wisconsin Department of Employee Trust Funds (ETF) announced that the state had reinstated the previous exclusion in its employee health plan on any “procedures, services, and supplies related to surgery and sex hormones associated with gender reassignment,” effective immediately.
Boyden’s surgical request—still unfulfilled—is now pointless.
“I could argue medical necessity but they still wouldn’t cover it because they’ll say it’s an exclusion of the plan,” she told The Daily Beast. “Sometimes you can’t win.”
Last July, the 11-member Group Insurance Board—housed within the ETF—voted unanimously to remove the exclusion on “benefits and services related to gender reassignment or sexual transformation,” according to meeting minutes (PDF).
ETF lawyers had recommended that the exclusion be removed in order to bring Wisconsin into compliance with an Affordable Care Act provision known as Section 1557—later clarified by a May 2016 Obama administration rule—that prohibits discrimination in health care on the basis of transgender status.
Most major medical associations—including the American Medical Association and the American Academy of Family Physicians—also support transgender health care.
But Wisconsin governor Scott Walker moved quickly to have the exclusion reinstated.
In August, Wisconsin joined Texas, Nebraska, Kentucky, and Kansas in a multi-state lawsuit against the Obama administration over the May 2016 rule. That same month, Wisconsin Deputy Attorney General Andy Cook also sent the Group Insurance Board a five-page memo urging them to “reconsider” their decision to lift the exclusion. (That memo was sent at Governor Walker’s request, as the Wisconsin State Journal later reported.)
The former tactic ended up working—at least, for the time being. On Dec. 31 of last year, a federal judge in Texas issued a temporary injunction against the Affordable Care Act regulation.
But the afternoon before that preliminary injunction was issued, the Group Insurance Board held what the Wisconsin State Journal called “an unusual special meeting.” At that meeting—which was closed to the public for over three hours, as the meeting minutes show (PDF)—the Group Insurance Board laid the groundwork for the reinstatement of the transgender health care exclusion, specifying conditions for its return, including a future court ruling on the subject.
The injunction conveniently satisfied that condition the next day.
“From what I could tell, they tried to do everything under the radar so to speak, which seemed incredibly fishy,” Violet Byrns, a local LGBT activist who attends the Madison Area Transgender Association group, told The Daily Beast.
Byrns, who was present for the mere 13 minutes of the Dec. 30 meeting that were open before it was closed to the public, called the preemptive move “a slap in the face to the trans community.”
When asked why the Group Insurance Board would convene prior to the Texas judge’s final decision, ETF communications director Mark Lamkins told The Daily Beast that the meeting was held “in anticipation of the court’s injunction before January 1 when benefits were effective for the new plan year.”
The sudden reinstatement of the transgender health care exclusion has already scuttled at least one state employee’s health care plans besides Boyden’s.
CV Vitolo-Haddad, a transgender communication doctoral student at the University of Wisconsin-Madison who prefers to go by the gender-neutral pronoun “they,” told The Daily Beast that they were on their third week of waiting for surgical pre-authorization when the exclusion went back into effect this month. They had started preparing for this surgery all the way back in September.
“There was very little warning or respect for those of us who had begun the process,” Vitolo-Haddad, who also directs the school’s debate team, told The Daily Beast.
Vitolo-Haddad was also in attendance at the fateful Dec. 30 meeting.
“I watched a board of individuals, none of them transgender—as far as I know—rip my health care out from under me,” they recalled. “How can I feel anything other than worthless?”
There are still no estimates for the number of people who have been impacted by the reinstatement of the exclusion.
According to Lamkins, the ETF is still compiling data on the utilization of the state’s transgender benefits in January. (Boyden was one of two clients represented by the ACLU of Wisconsin—the other being transgender University of Wisconsin-Madison researcher Shannon Andrews—who had filed complaints with the Equal Employment Opportunity Commission over the exclusion.)
But however many transgender state employees and dependents there are in Wisconsin, they wouldn’t have cost the state very much money.
As the Wisconsin State Journal reported, a state consultant estimated the annual cost of covering transgender people under the plan to “range from $100,000 to $250,000” annually—less than two-tenths of 1 percent of the health program budget at most. As The Daily Beast has previously reported, transgender health care benefits tend to have very low program costs, according to data collected in both the public and private sector.
Wisconsin’s reinstatement of the exclusion comes on the heels of a similar decision made by the University of Arkansas system.
Because the Texas injunction temporarily prevents the U.S. Department of Health and Human Services from enforcing the Section 1557 regulations, the University of Arkansas system announced last month that it would be suspending transgender-inclusive health benefits in March. That decision also threw transition plans up in the air, as The Daily Beast reported last week.
For transgender state employees in Wisconsin, there is no telling when—or if—the benefits will return, short of federal action or a future court decision.
On behalf of the ETF, Lamkins told The Daily Beast, “At this time, the Group Insurance Board does not have a condition in place to reverse or reconsider the exclusion.”
But while the ACLU of Wisconsin evaluates its next course of action, Boyden has vowed to keep fighting however she can.
“I made a promise that I wasn’t gonna stop until no other state employee in Wisconsin had to put up with [this],” she told The Daily Beast. “So I’m going to keep going until I fulfill that promise.”