Filed

Michigan’s Medicaid program contracts with private insurance companies to provide government-funded Medicaid services, and some companies have long resisted transgender patients’ efforts to obtain coverage for gender dysphoria-related treatments even when their medical providers have determined the treatments to be medically necessary. Beginning in 2018 the ACLU of Michigan represented transgender women in multiple administrative appeals challenging denials of coverage for gender confirmation surgery. Following our advocacy efforts, in September 2018 the Michigan Department of Health and Human Services (MDHHS) instructed Michigan Medicaid insurance programs to remove blanket exclusions of gender confirmation surgery from their policies, citing the nondiscrimination requirements of the Affordable Care Act, and our clients’ administrative claims settled. Since then we have continued to represent transgender women in administrative appeals challenging the denial of coverage for facial feminization surgeries. The Michigan Department of Insurance and Financial Services (DIFS), Michigan’s insurance regulatory agency, has resolved the vast majority of these appeals in favor of the patients, holding that insurance companies must apply the standard of care established by the World Professional Association for Transgender Health (WPATH), and under those standards facial feminization surgery was medically necessary for treatment of gender dysphoria. In April 2021 we appealed a contrary DIFS decision involving Molina Healthcare to the Ingham County Circuit Court, and the case quickly settled. In November 2021, following continuing advocacy efforts, MDHHS issued an official policy directive requiring Medicaid providers to use WPATH standards to determine coverage for gender-confirming treatments and procedures. Despite this directive in September 2022 we were forced to appeal an adverse DIFS ruling involving Blue Cross Blue Shield, and the case settled in July 2023. (Hudson v. Molina Healthcare of Michigan; Wismer v. Blue Cross Blue Shield of Michigan; ACLU Attorneys Jay Kaplan and Dan Korobkin; Cooperating Attorney Gerald Aben of Dykema.)

In 2017 the ACLU filed a federal lawsuit challenging Michigan’s practice of permitting state-funded child placement agencies to reject qualified same-sex couples based on the agencies’ religious beliefs. The State of Michigan is responsible for approximately 13,000 children who are in the state’s foster care system, usually because they were removed from their families due to abuse or neglect. Even though adoption and foster care placement is a public function, the state allowed publicly funded agencies, some of which are faith-based, to discriminate against same-sex couples. In 2018 Judge Paul Borman denied the state’s motion to dismiss our lawsuit. In February 2019 the case settled when Governor Whitmer’s new administration agreed to a non-discrimination policy for all contracts with adoption and foster care agencies. However, in March 2019 two faith-based agencies filed new lawsuits against the state, claiming that the non-discrimination policies violated their right to religious liberty. Judge Robert Jonker granted a preliminary injunction in one of the cases, preventing the state from enforcing its non-discrimination policy pending further review. We filed motions to intervene in the new cases to defend the settlement agreement from our previous case. Judge Jonker denied our motion to intervene in one of the cases, but the Sixth Circuit reversed. However, in 2021 the U.S. Supreme Court decided a similar case in favor of faith-based agencies, significantly changing the law in this area. Following that ruling, in January 2022 Michigan entered into a consent judgment that will allow the faith-based agencies to refuse to work with same-sex couples under some circumstances, and in May 2022 we withdrew from the case. (Dumont v. Lyon; Buck v. Gordon; Catholic Charities West Michigan v. Michigan Department of Health & Human Services; ACLU of Michigan Attorneys Jay Kaplan and Dan Korobkin; National ACLU Attorneys Leslie Cooper and Dan Mach; co-counsel Garrard Beeney, Ann-Elizabeth Ostrager and Elizabeth Storey of Sullivan & Cromwell.)

In 2017 the school board in Williamston did the right thing by enacting policies that support the rights of LGBT students to be free from discrimination and bullying.  A right-wing group representing a few parents then sued the school district, claiming that the LGBTQ-inclusive policies violate the religious liberty of Christian families who don’t want their children to be exposed to “alternative sexual lifestyles.” 

In 2018 the ACLU filed a motion to intervene in the case on behalf of Stand With Trans, an organization that provides support to transgender youth and their families, and the Gay Straight Alliance (GSA) student group at Williamston High School.  We also argued that the lawsuit should be dismissed, as LGBTQ students will be at risk of discrimination if school districts are not permitted to have LGBTQ-inclusive non-discrimination policies.  In July 2019 the court granted our motion to intervene on behalf of the GSA. 

In October 2020 Judge Hala Jarbou dismissed the parents’ complaint for lack of jurisdiction and failure to state a claim.  The plaintiffs did not appeal.  

(Reynolds v. Talberg; ACLU of Michigan Attorneys Jay Kaplan and Dan Korobkin; National ACLU Attorneys Shayna Medley-Warsoff and John Knight; Cooperating Attorneys Deborah Kovsky-Apap and Matthew Lund of Pepper Hamilton.)