United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE.
Alina Boyden and Shannon Andrews are both employees of the
State of Wisconsin and transgender women, who assert claims
against various state officials and entities for excluding
gender transition care from coverage under group health
insurance plans for state employees. Before the court is
state defendants' motion to dismiss. (Dkt. #28.) For the
reasons explained below, the court will grant that motion in
part and deny it in part. Specifically, the court will grant
the motion based on plaintiffs' lack of legal standing to
pursue claims against the Board of Regents of the University
of Wisconsin System, Raymond W. Cross and Rebecca M. Blank.
The court will also grant the motion to dismiss
plaintiffs' claim under the Patient Protection and
Affordable Care Act against the Wisconsin Group Insurance
Board for failing to allege that it is a recipient of federal
funding. In all other respects, the motion is
Alina Boyden and Shannon Andrews are transgender women. Each
were assigned male identities at birth, but self-identify as
female and have done so throughout their lives. Both have
received diagnoses of gender dysphoria, a widely recognized
medical diagnosis marked by “feeling[s] of incongruence
between one's gender identity and one's sex assigned
at birth, and the resulting stress from that
incongruence.” (Am. Compl. (dkt. #27) ¶ 31.)
employees of the State of Wisconsin, plaintiffs receive
state-provided health insurance. Boyden is a graduate student
and teaching assistant in the Department of Anthropology at
the University of Wisconsin-Madison. Andrews works at the
University of Wisconsin School of Medicine and Public Health.
Both are employed by the Board of Regents, which is the
governing body of the University of Wisconsin System. The
Board of Regents is named as a defendant, along with
University of Wisconsin-Madison Chancellor Rebecca M. Blank,
University of Wisconsin System President Raymond W. Cross,
and School of Medicine Dean Robert N. Golden (collectively,
“Employer Defendants”). All Employer Defendants
have some employment relation to the plaintiffs.
state employees, the parties agree that plaintiffs are
eligible for state group health insurance. The Wisconsin
Department of Employee Trust Funds (“ETF”)
administers group health insurance, along with retirement and
other employee benefits. ETF Secretary Robert J. Conlin heads
that department. ETF and the secretary oversee implementation
of employee health insurance, but they do not set policy.
Instead, policymaking --including the contractual terms for
group health insurance -- is delegated to the Wisconsin Group
Insurance Board (“GIB”). As an “attached
board, ” GIB is located within ETF, but with separate
membership and autonomy from ETF. GIB made the decision to
exclude gender transition-related care from group health
insurance, and ETF is bound by that decision.
plaintiffs receive state group health insurance plans through
ETF. Due to GIB's decision to exclude gender transition
treatment, both plaintiffs were denied coverage for sex
reassignment surgery. Both filed complaints and requested
right-to-sue letters from the EEOC. Boyden's efforts to
receive treatment are more fully described in this
court's earlier order dismissing Dean Health. (Dkt. #44.)
the lack of coverage, Boyden never received surgery. Andrews,
however, did not wait for the state to lift the restriction.
In 2015, she was medically referred to the Papillon Gender
Wellness Center in Pennsylvania, and she received sex
reassignment surgery there that same year. Andrews paid
Papillon $14, 750 out-of-pocket, and in February 2016, she
filed a claim with her health insurance administrator,
Wisconsin Physicians Service Insurance Corporation
(“WPS”). WPS denied the claim because of
Wisconsin's transition-related care exclusion. It also
denied a second claim for reimbursement of additional
hospital fees and anesthesia. Andrews appealed her denial, to
no avail, and submitted a complaint to ETF. She has not been
reimbursed for the procedure.
parties agree that the School of Medicine and Public Health
is not a suable entity and should be dismissed from this
case. They also agree that punitive damages are not available
under Title VII, and all claims for punitive damages under
Title VII and should be dismissed. As for the remainder of
their motion, defendants are trying to perform a sort of
“magic trick.” By arguing that only GIB is
responsible for health insurance, but that neither GIB nor
ETF is an employer, defendants are essentially arguing that
the State of Wisconsin is entirely immunized from Title VII
claims. That is not the case. In addition to challenges to
standing and to the Title VII claims, the court will also
address defendants' motion to dismiss the § 1983
claims against the individual defendants and defendants'
challenge to the ACA claims.
Article III Standing
begin, this court is certainly one of limited authority.
See Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994) (“Federal courts are
courts of limited jurisdiction.”). Most fundamentally,
the United States Constitution restricts the jurisdiction of
federal courts to the adjudication of “cases” or
“controversies.” U.S. Const. art. III, § 2,
cl. 1. To establish a case or controversy, a plaintiff must
(1) have suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision. See Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016).
do not challenge the first prong of constitutional standing
-- that plaintiffs have suffered an injury in fact. They do
challenge the second and third prongs for all defendants,
except GIB. Defendants argue that GIB is the sole
defendant responsible for denying coverage of
transition-related care and the sole defendant
empowered to make coverage decisions. Therefore, defendants
argue, plaintiffs' injury is neither caused by the
conduct of any other defendant, nor redressable by any other
defendant, meaning that the claims against all other
defendants must be dismissed for lack of standing.
reasons explained below, defendants are only partially
correct. The Employer Defendants do indeed fall outside the
court's jurisdiction and must be dismissed. Based upon
the information alleged, however, plaintiffs' injuries
can be fairly traced to GIB, ETF and ETF's Secretary
Conlin. A judgment against these defendants would also
provide the plaintiffs redress.
causation element of standing demands that the injury be
fairly traceable to the challenged action of a defendant,
rather than the result of independent action by some third
party not before the court. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992). Article III
causation is a fairly modest bar: proximate causation is not
required, see Lexmark Int'l, Inc. v. Static Control
Components, Inc., 134 S.Ct. 1377, 1391 n.6 (2014), nor
must the defendant be the only party responsible for the
alleged injury, see Lac du Flambeau Band of Lake Superior
Chippewa Indians v. Norton, 422 F.3d 490, 500 (7th Cir.
2005). Generally, the complaint need only allege that
“but for” some act or omission of the defendant,
the injury would not have occurred. See, e.g.,
id. at 501 (plaintiff had standing to sue U.S.
Secretary of Interior because the regulable third party would
not have harmed plaintiff but for Secretary's inaction).
are some exceptions even to this “but for” bar.
When the injury is caused by an unconstitutional rule of law,
the proper defendant is the state official designated to
enforce that rule. See Am. Civil Liberties Union v. The
Florida Bar, 999 F.2d 1486, 1490 (11th Cir. 1993)
(ACLU) (citing Diamond v. Charles, 476 U.S.
54, 64 (1986)). For example, if preemptively challenging a
criminal statute, the plaintiff should sue the Attorney
General's office or the local district attorney. See
Wilson v. Stocker, 819 F.2d 943, 947 (10th Cir. 1987);
Doe v. Bolton, 410 U.S. 179 (1973). Likewise, if a
statute creates state-enforced civil penalties, a plaintiff
may preemptively sue state officials tasked with enforcing
that statute. See Planned Parenthood of Wis., Inc. v. Van
Hollen, 738 F.3d 786, 794-795 (7th Cir. 2013). This
enforcement exception applies even when the challenged rule
of law was not created by a legislature. For example, in
ACLU, the plaintiff was found to have standing to
challenge the constitutionality of the Florida Code of
Judicial Conduct (promulgated by the Supreme Court of
Florida) by suing the State Bar and the Judicial
Qualifications Commission (charged with enforcement of the
code). ACLU, 999 F.2d at 1490; see also Buckley
v. Ill. Judicial Inquiry Bd., 997 F.2d 224 (7th Cir.
1993) (finding standing for plaintiffs to challenge rules
promulgated by the Supreme Court of Illinois, by suing
entities charged with enforcing them).
plaintiffs argue that under Arizona Governing Committee
for Tax Deferred Annuity & Deferred Compensation Plans v.
Norris, 463 U.S. 1073 (1983), the United States Supreme
Court recognizes plaintiffs' standing to sue ETF and
Conlin. While Norris is inapplicable on its face,
court agrees with plaintiffs that the causation element is
satisfied when a defendant enforces or administers a
challenged policy. In applying this rule, the court
separately analyzes the roles of the Employer Defendants and
legal purposes, plaintiffs are employed by the State of
Wisconsin. Much like the divisions of a large corporation,
however, the Wisconsin Legislature has seen fit to divide up
the employment responsibilities of the state, delegating them
to various government agencies. The Employer Defendants are
the persons and entities most immediately connected to
plaintiffs' day-to-day employment, but appear to play no
role in the administration of state health insurance. Health
insurance falls under the domain of ETF and GIB. As a result,
while plaintiffs urge the court to apply a “but
for” test of causation, they do not and cannot allege
any acts or omissions by the Employer Defendants that would
satisfy this test, nor do they argue that the Employer
Defendants are charged with administering the insurance
policy at issue here.
plaintiffs allege that the Employer Defendants did nothing
more than hire the plaintiffs, making them eligible
for group health insurance through ETF. When employees
elected to receive group health insurance, they obtained it
through ETF. The Employer Defendants themselves, therefore,
played no role in selecting, offering or providing that
health insurance. As such, plaintiffs are unable to trace
causation back fairly to the Employer Defendants, and those
defendants must be dismissed for lack of standing.
ETF and ...