3:17-Cv-00264-Wmc Document #: 120 Filed: 06/29/18 Page 1 of 45
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Case: 3:17-cv-00264-wmc Document #: 120 Filed: 06/29/18 Page 1 of 45 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ALINA BOYDEN and SHANNON ANDREWS, Plaintiffs, v. Case No. 17-CV-0264 STATE OF WISCONSIN DEPARTMENT OF EMPLOYEE TRUST FUNDS, et al., Defendants. STATE DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Case: 3:17-cv-00264-wmc Document #: 120 Filed: 06/29/18 Page 2 of 45 TABLE OF CONTENTS INTRODUCTION .................................................................................................1 BACKGROUND FACTS .......................................................................................3 ARGUMENT .........................................................................................................5 I. State Defendants do not dispute standing, at least for purposes of this summary judgment motion. ............................5 II. Plaintiffs should be denied summary judgment on their Title VII claims against ETF and GIB. ..................................5 A. ETF and GIB are not proper Title VII defendants. ..............................................................................5 B. Even assuming GIB or ETF is a proper Title VII defendant, neither one discriminated against Plaintiffs on the basis of sex or transgender status. ...............................................................11 III. Plaintiffs should be denied summary judgment on their equal protection claims under 42 U.S.C. § 1983 against Secretary Conlin. ...............................................................16 A. Plaintiffs’ official capacity claims fail because the Exclusion survives equal protection scrutiny. .................................................................................17 1. Rational basis review, not heightened scrutiny, applies here..................................................17 2. Plaintiffs’ claims fail under either heightened scrutiny or rational basis review. .........................................................................21 a. The Exclusion survives heightened scrutiny. .............................................................21 b. The Exclusion survives rational basis review. ......................................................28 Case: 3:17-cv-00264-wmc Document #: 120 Filed: 06/29/18 Page 3 of 45 B. Plaintiffs are not entitled to summary judgment on their equal protection claims against Secretary Conlin in his individual capacity. .................................................................................36 IV. Plaintiffs’ Affordable Care Act Section 1557 claims against ETF do not merit summary judgment. .............................39 A. ETF is subject to Section 1557 because it receives federal financial assistance. ...................................39 B. ETF did not violate Section 1557. ........................................40 CONCLUSION ....................................................................................................41 Case: 3:17-cv-00264-wmc Document #: 120 Filed: 06/29/18 Page 4 of 45 INTRODUCTION This case is not about State Defendants’ desire to harm, demean, or otherwise punish any beneficiaries of the Wisconsin Group Health Insurance Program because they are transgender. State Defendants have no such desire—and Plaintiffs identify no evidence that shows otherwise. State Defendants do not bar these transgender people from living out their gender identity. Transgender people are not fired from state employment for being transgender, they are not forbidden from marrying who they choose, they are not altogether excluded from state health insurance coverage, and they are not barred from obtaining plastic surgery to align their body with their gender identity. Simply put, State Defendants do not wish to interfere with how transgender people choose to live their lives. This case presents a more difficult issue, one that concerns only those transgender people who suffer from gender dysphoria, a serious mental condition that unquestionably requires treatment: Must Wisconsin taxpayers finance expensive plastic surgery treatments that may not actually treat gender dysphoria, when coverage for similar procedures is denied to both cisgender and transgender persons to treat other psychological conditions? For a male-to-female transition, such plastic surgery can include genital surgeries, breast augmentation, facial feminization (such as rhinoplasty, reduction of the Adam’s apple, and face-lifts), contour modeling of the waist, Case: 3:17-cv-00264-wmc Document #: 120 Filed: 06/29/18 Page 5 of 45 liposuction, and gluteal (i.e. buttock) augmentation. (State Defendants’ Proposed Findings of Fact (DFOF) ¶ 145.1) For a female-to-male transition, such plastic surgery can include genital surgeries, mastectomies, liposuction, and pectoral implants. (DFOF ¶ 146.) It is obvious that providing health insurance coverage for such extensive surgery would impose a meaningful cost on taxpayers, who ultimately finance state employees’ health insurance costs. And Plaintiffs have not identified a single well-designed study showing that any of these plastic surgeries effectively treat gender dysphoria. Rather, they point to studies showing, at most, that a patient’s self-image may improve after receiving such procedures. But it is unremarkable that someone’s self-image might improve after receiving thousands of dollars of plastic surgery. The real metric is whether this kind of plastic surgery reduces the incidence and prevalence of gender dysphoria—the mark of any true “treatment” for a disease or disorder. No such evidence exists. Accordingly, the state entity with a fiduciary duty to prudently manage state employees’ health insurance—the Wisconsin Group Insurance Board (GIB)—could reasonably decide not to provide insurance coverage for these kinds of treatments. 1 Citations to DFOF paragraphs 119 and above reference State Defendants’ Additional Proposed Findings of Fact, filed concurrently with this brief. (Dkt. 121.) Citations to DFOF paragraphs 1 through 118 reference State Defendants’ original proposed findings of fact at Docket number 88. 2 Case: 3:17-cv-00264-wmc Document #: 120 Filed: 06/29/18 Page 6 of 45 Nothing in that reasoning relies on irrational animus against transgender people, which explains why Plaintiffs’ claims ultimately fail and summary judgment in their favor should be denied. BACKGROUND FACTS For a complete factual history of this case, State Defendants refer this Court to the Statement of Facts in their motion for summary judgment. (Dkt. 81:8–16.) To the extent Plaintiffs have misstated the facts in their summary, that is addressed below when relevant and in the concurrently-filed response to Plaintiffs’ proposed findings of fact. State Defendants and Plaintiffs largely agree that no material dispute of fact exists. As for the “who, what, where, and when,” those facts are undisputed. Both sides agree that GIB acted in 2016 to remove and then reinstate the longstanding coverage exclusion for “[p]rocedures, services, and supplies related to surgery and sex hormones associated with gender reassignment” (the “Exclusion”). (DFOF ¶¶ 24, 61–66; Plaintiffs’ Proposed Findings of Fact (PFOF) ¶¶ 103, 125.) And both sides agree that Wisconsin Employee Trust Funds (ETF) and Secretary Conlin had no power over GIB’s decision, but that, as required by state law, they took steps to implement that decision. (DFOF ¶¶ 33–36; PFOF ¶¶ 79–81, 83.) The only disputed facts here revolve around the “why”—that is, the accuracy of GIB’s asserted interests in (1) containing costs and (2) declining to 3 Case: 3:17-cv-00264-wmc Document #: 120 Filed: 06/29/18 Page 7 of 45 cover plastic surgeries with uncertain safety and efficacy when used to treat gender dysphoria, a psychological condition. State Defendants’ experts say that the procedures would cost around $300,000 per year and have not been shown to be safe and effective for treating gender dysphoria (DFOF ¶¶ 91, 101–02); Plaintiffs’ experts disagree. (PFOF ¶¶ 48–50, 53.) But neither this Court (nor a jury) needs to resolve this battle of the experts to decide the case. Rather, this Court need only decide whether GIB’s cost and medical concerns supply a reasonable basis for its decision. See, e.g., Turner Broad. v. FCC, 910 F. Supp. 734, 739 (D.D.C. 1995) (in intermediate scrutiny case, “[a]s long as there is no material dispute that there is substantial evidence from which Congress could have drawn a reasonable inference, then the government is entitled to summary judgment”). Summary judgment is appropriate even if the Exclusion saves the State of Wisconsin $200,000 rather than $300,000 a year, or even if some studies might suggest that some gender dysphoric patients may feel better after undergoing gender reassignment surgery. What matters is that it is undisputed that removing the Exclusion would impose meaningful costs on taxpayers and that serious doubts exist regarding the state of the scientific evidence regarding the safety and efficacy of surgical treatments for gender dysphoria. That is enough to defeat Plaintiffs’ motion for summary judgment and resolve this case in State Defendants’ favor, as discussed further below. 4 Case: 3:17-cv-00264-wmc Document #: 120 Filed: 06/29/18 Page 8 of 45 ARGUMENT I. State Defendants do not dispute standing, at least for purposes of this summary judgment motion. State Defendants do not dispute that, under this Court’s decision on standing in its order on their motion to dismiss (Dkt. 67:4–13), Plaintiffs