Transgender women celebrate monumental court win

It was the first case outcome of its kind: a total of $780,000 in damages for two transgender women who were denied medically necessary health care because of their gender identity. It was also likely the first time a court found that facial feminization surgery was medically necessary.

The women now hope that if eight jurors in Wisconsin could be convinced that transgender people deserve access to health care related to their identities, others might be inspired to fight for what they deserve, too.

In September, a federal judge ruled that Wisconsin had violated the rights of Alina Boyden and Shannon Andrews by enforcing an exclusion in the state employee health insurance plan on any treatments related to a gender identity transition. U.S. District Judge William Conley agreed with judges around the country that discriminating against transgender people constitutes discrimination on the basis of their sex — the very opposite of the trans erasure the Trump administration is trying to impose.

But Boyden and Andrews also sued for damages. This meant that even though the state had lost on its case, there would be a new trial before a jury. The women had to sit through grueling depositions, then endure cruel cross-examinations in the courtroom. Ultimately, the state’s scrutiny of their private lives won them sympathy from the jury.

“It really backfired on the state,” Andrews told ThinkProgress. “The jury was able to see the discrimination happen in front of them in real time. If I was reading their facial expressions correctly, they looked pretty angry about it.”

“Their strategy infuriated the jury more than it helped them,” Boyden added. She called the trial “gross and hamhanded.” Not only had the state already lost, its lawyers then went to the jury with a character assassination against a cancer researcher and tried to claim that a grad student was rich. “Not the brightest of strategies,” Boyden said.

Still, neither was convinced they’d won until the words came out of the juror’s mouth. Both worried that if they couldn’t convince the jury, that loss would far outweigh the technical victory they had already won.

In the end, not only did the jury agree that the state had hurt them, it found that the women had truly suffered as a result of the state’s discriminatory exclusion policy.

Andrews and Boyden both spoke with ThinkProgress about the many hurdles they faced before arriving at such a momentous victory.

Compounding discrimination

When Alina Boyden arrived at the University of Wisconsin, Madison in 2013 as a graduate student, she was optimistic about her experience there because the school’s nondiscrimination policy included gender identity. But when she read the state health plan she’d have access to, she saw an exclusion for any procedures related to “gender reassignment or sex transformation.”

She was lucky enough to find a physician who would maintain her hormone replacement therapy without identifying her in the paperwork as a transgender person. But then, after a decade of being able to manage her hormone levels, Boyden experienced a testosterone spike, and her doctor wanted her to see a specialist to make sure it wasn’t cancer.

When she called the only such endocrinologist on her health plan, a nurse allegedly told her over the phone, “We don’t treat transgenders here.” It didn’t matter that she wasn’t looking for assistance with transitioning; she wasn’t welcome there.

It was the worst experience of my life to realize they’ll treat anybody but they won’t treat you.

She insistently showed up in person and managed to get an appointment, but claimed her experience with the doctor was very negative. “What do you want from me?” the doctor allegedly told her. “Your hormone levels are like this because you’re a man.”

They ruled out cancer, but the doctor allegedly claimed (falsely) that there were no other medications that could help control her hormone levels. “It was the worst experience of my life,” Boyden said, “to realize they’ll treat anybody but they won’t treat you. I was a TA making almost nothing, teaching students archaeology. What have I done in my life that’s so wrong that I deserve to be treated this way?”

Boyden finally found another friendly physician who was able to immediately prescribe helpful drugs the endocrinologist hadn’t mentioned, but they weren’t covered by her plan, nor was the gender confirmation surgery she was considering. “How can you say ‘We don’t treat transgenders here’ isn’t discriminatory?” she asked school officials.

She said the university’s Title IX coordinator allegedly told her that the policy’s trans exclusion was no different than other cosmetic solutions.

Shannon Andrews took a job as a cancer researcher at the University of Wisconsin School of Medicine and Public Health in 2014, having previously completed a postdoc at UW Madison. Like Boyden, she had to find her own treatment outside her health plan, and she eventually paid for her gender confirmation surgery out of her own pocket in 2015. She tried to file for reimbursement, hoping that maybe the plan would at least cover her anesthesia fees, but was denied.

She appealed, drawing on her expertise as a medical researcher and making what she called a “three pronged argument from the compassionate perspective, medical perspective, and financial perspective.” While she was applauded for her articulate plea, the exclusion was still enforced against her.

Both Boyden and Andrews were ready to keep fighting, and both found the ACLU, which was ready to take their cases. Though they didn’t know each other, they ended up becoming good friends as they challenged Wisconsin’s blanket exclusion together.

In 2016, it looked like they might not have to wait for a ruling. That July, Wisconsin’s Group Insurance Board unanimously voted to remove the exclusion to comply with Obama administration’s guidance regarding enforcement of the Affordable Care Act’s nondiscrimination protections (Section 1557). The exclusion was set to be lifted as of January 1, 2017.

Then Donald Trump won the presidential election and Gov. Scott Walker (R) directed the board to reinstate the exclusion, which took effect February 1, 2017. Technically, there was a month when the exclusion was not in effect, but nobody was able to access it because insurers knew the exclusion was returning. The case was still on.

Cross examination

Once the ACLU took up their case, neither Andrews nor Boyden were heavily involved. In fact, Boyden was in India for the summer working on her dissertation. Not knowing when or how it would be resolved, Andrews took another necessary transition step, facial feminization surgery, again paying for it out of pocket. She added the expense to the damages in the suit.

“It’s a room of all men and I’m being asked about my breasts.”

After the first victory in September, both had to undergo depositions for the jury trial. Andrews endured over eight grueling hours of questioning as the state’s attorney “asked me to recount my life story since I was 5.” At one point, she was asked to assess how much discomfort she felt for every feature of her body, including her shoulders, facial hair, genitals, voice, etc.

“You waited until you were 30; why couldn’t you have just kept going as a man?” she recounted being asked. Even though he had her records, he still asked her to talk about the changes to her body from hormone therapy. “It’s a room of all men and I’m being asked about my breasts,” she said.

“That’s something that people who fight for civil rights need to be aware of,” she added, calling it “an intimidation tactic” to have every aspect of her life “weaponized” against her, including her relationship with her girlfriend and her therapy records.

“If you stand up, your life will be put under a microscope,” Andrews explained.

Because Andrews had gone first, Boyden was prepared for similar scrutiny. “It seemed like what they were mostly trying to establish is that I didn’t want surgery and that I had no interest in it,” she recalled. Pouring through her old medical and financial records, they tried to make the case that she could have easily afforded surgery if she wanted it. “As you get paid $1,100 a month as a teaching assistant, to think I can pay for a $20- or $30-thousand surgery is ridiculous.”

Both of these cross examinations were repeated at the trial in front of the jury. Boyden, for example, was asked if she’d ever taken out a loan for surgery or gone to a bank seeking support for it. “For them to say, if you can afford it yourself, you don’t need your insurance — why not apply that to Scott Walker and everyone else who makes a lot of money? Is that the route we really want to go down?”

Andrews was asked to describe in clinical detail exactly what procedures had been done to her genitals. “I don’t think there was any medical relevance, because nobody was saying I hadn’t had surgery,” she reasoned. “They were trying to disgust the jury — make ‘trans’ seem scary and alien, and incite transphobia.”

While both women thought the cross-examination tactics had backfired, they were still worried about the jury. “What if they come back and they check that box that [states] that we weren’t harmed, or they give us a $1 award that’s more a slap in the face?” Andrews said.

A “no” on the form, Boyden explained, would mean “everything we went through doesn’t count. Even though state had done something illegal, it wasn’t wrong and hadn’t hurt anyone.” She called it a “horrible prospect” that would hurt the entire trans community.

But the jury checked the “yes” box. Boyden was granted $1,000 for what she had spent on treatment, plus $300,000 for pain and suffering. Andrews likewise received $79,000, which included the costs of both her gender confirmation surgery and her facial feminization surgery, plus another $400,000 for pain and suffering. If the state appeals those damages, they may never see a dime, but the result at least recognizes that it wasn’t just enough to lift the state’s exclusion.

“It does a lot to heal the wounds left by feeling like you’re not valued,” Andrews said. Seeing eight fellow citizens try to right the wrong she had experienced, she added, made her feel as if “maybe, I’m not as alone as I thought I was.”

“Now I can think about what kind of future I’m going to have — a life that’s worth living.”

Boyden was far more confident before the verdict and felt vindicated by the win. “What the jury showed was that, in Wisconsin at least, when eight average people listen to trans people, they’ll decide in our favor,” she said. “I think that reaffirmed the basic belief I have in human decency.”

Now that she’s guaranteed coverage, Boyden is starting to prepare the paperwork to pursue her gender confirmation surgery. Because she won’t see the award anytime soon, if at all, she views the win as symbolic. “Trans people are harmed when there’s an exclusion that denies them health care,” she said. “That’s what that money means.”

Andrews believes the case will have impacts beyond trans health care. “Trans medical issues touch on the fundamental human right to bodily autonomy,” she explained, noting that women and other vulnerable groups face similar challenges of the government trying to get between them and their doctor.

Both are now optimistic about their futures. Andrews had sacrificed her retirement money to pay for her surgery on the grim belief that she might not otherwise need it. “Now I can think about what kind of future I’m going to have — a life that’s worth living,” she said.

Boyden is continuing work on her PhD and may soon publish a fantasy novel with a trans woman heroine. Growing up, she never had books with trans characters, let alone a trans hero, and she hopes she can inspire future trans kids to achieve great things.

“When you stand up to this kind of discrimination, a lot of people will stand behind you,” she said.