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Boyden v. Conlin

United States District Court, W.D. Wisconsin

May 11, 2018




         Plaintiffs 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.[1] In all other respects, the motion is denied.


         Plaintiffs 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.)

         As 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.

         As state employees, the parties agree that plaintiffs are eligible for state group health insurance.[3] 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.[4] GIB made the decision to exclude gender transition-related care from group health insurance, and ETF is bound by that decision.

         Both 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.)

         Due to 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”).[5] 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.[6] Andrews appealed her denial, to no avail, and submitted a complaint to ETF. She has not been reimbursed for the procedure.


         The 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.

         I. Article III Standing

         To 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).

         Defendants 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.

         For 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.

         A. Causation

         The 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).

         There 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).

         Finally, 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, [7] the 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 ETF.

         1. Employer Defendants

         For 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.

         Instead, 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.[8] As such, plaintiffs are unable to trace causation back fairly to the Employer Defendants, and those defendants must be dismissed for lack of standing.

         2. ETF and ...

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