Boyden v. Conlin, 17-cv-264-wmc

• Decision Date: 18 September 2018
• Docket Number: 17-cv-264-wmc
• Citation: 341 F.Supp.3d 979
• Parties: Alina BOYDEN and Shannon Andrews, Plaintiffs, v. Robert J. CONLIN, State of Wisconsin Department of Employee Trust Funds, State of Wisconsin Group Insurance Board, Michael S. Farrell, Stacey Rolson, Charles Grapentine, Waylon Hurburt, Theodore Nietzke, J.P. Wieske, Bob Ziegelbauer, Jennifer Stegall, Francis Sullivan, Herschel Day, and Nancy Thompson, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

341 F.Supp.3d 979

Alina BOYDEN and Shannon Andrews, Plaintiffs,

v.Robert J. CONLIN, State of Wisconsin Department of Employee Trust Funds, State of Wisconsin Group Insurance Board, Michael S. Farrell, Stacey Rolson, Charles Grapentine, Waylon Hurburt, Theodore Nietzke, J.P. Wieske, Bob Ziegelbauer, Jennifer Stegall, Francis Sullivan, Herschel Day, and Nancy Thompson, Defendants.

17-cv-264-wmc

United States District Court, W.D. Wisconsin.

Signed September 18, 2018

John Anthony Knight, ACLU Foundation, Carolyn M. Wald, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, Laurence J. Dupuis, Asma Imtiazali Kadri, American Civil Liberties Union of Wisconsin Foundation, Milwaukee, WI, Michael Godbe, Nicholas E. Fairweather, Amanda Michelle Kuklinski, Caitlin Marie Madden, Hawks Quindel, S.C., Madison, WI, for Plaintiffs.

Colin Thomas Roth, Jody J. Schmelzer, Steven Carl Kilpatrick, State of Wisconsin Department of Justice, Madison, WI, for Defendants.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge

As transgender women and employees of the State of Wisconsin, plaintiffs challenge the State's exclusion of "[p]rocedures, services, and supplies related to surgery and sex hormones associated with gender reassignment" from health insurance coverage provided to state employees under Title VII, 42 U.S.C. § 2000e et seq. , the anti-discrimination provision of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116 ("ACA" or "Section 1557"), and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Before the court are the parties' cross-motions for summary judgment. (Dkt. ## 80, 95, 141.) The court recently considered a similar exclusion for Wisconsin Medicaid recipients, though on a motion for preliminary injunction. See Flack v. Wis. Dep't of Health Servs. , 328 F.Supp.3d 931 (W.D. Wis. 2018). Now, with the benefit of a full record, the court concludes here that the challenged exclusion constitutes sex discrimination in violation of Title VII and the ACA. As for plaintiffs' Equal Protection claim, the court concludes that the claim is subject to heightened scrutiny, and defendants have failed to put forth evidence to find that proffered concerns about cost or efficacy were genuine and not post hoc inventions in response to litigation. However, relief for violating the Equal Protection Clause is injunctive only, because the named, individual defendants are entitled to qualified immunity.

PRELIMINARY ISSUE

Before turning to the parties' motions for summary judgment, the court must first address defendants' motions to strike supplemental reports submitted by plaintiffs' experts. (Defs.' Mots. (dkt. ## 124, 138).) Plaintiffs timely served expert reports of Stephanie Budge, Ph.D., a licensed psychologist specializing in issues of gender identity and gender transition processes, and Loren S. Schechter, M.D., a board certified plastic surgeon specializing in performing gender confirming surgery. (Budge Original Rept. (dkt. # 89); Schechter Original Rept. (dkt. # 106).) Plaintiffs later filed an arguably untimely set of "supplemental expert reports" along with their brief in opposition to defendants' motion for summary judgment, and yet another set of so-called "supplemental expert reports" at the time of filing a reply brief in support of their own motion for summary judgment. (Schechter Suppl. Rept. (dkt. # 116); Budge Suppl. Rept. (dkt. # 119); Schechter 2d Suppl. Rept. (dkt. # 137); Budge 2d Suppl. Rept. (dkt. # 136).)

Defendants contend that these reports are not proper supplemental reports within the meaning of Federal Rule of Civil Procedure 26(e)(2), and instead are untimely rebuttal reports. As such, defendants seek an order striking them under Federal Rule of Civil Procedure 37 for violating the court's scheduling order.

For the most part, in comparing the topics in the original, timely reports to those covered in the supplemental reports, the opinions are not new; rather, plaintiffs' experts simply provide some additional support. Critically, with respect to the topics in the supplemental reports, the original reports contain the experts' conclusions, as well as an explanation of how and why they each reached those conclusions. See Salgado by Salgado v. Gen. Motors Corp. , 150 F.3d 735, 742 (7th Cir. 1998) (describing disclosure requirements under Rule 26(a)(2)(B) ).

Starting with Dr. Budge's supplemental reports, the following topics were already covered in her original report:

• Supplemental Report Topic 1 and Second Supplemental Report Topics 4 and 5, all concerning whether treatments for gender dysphoria

are similar to cisgender persons seeking cosmetic surgery (see Budge Original Rept. (dkt. # 101) 16-17, 20 (opining that gender confirming surgery is reconstructive, not cosmetic) );

• Supplemental Report Topic 3 and Second Supplemental Report Topic 1, addressing studies showing hormone therapy and surgery are safe and effective (see

id. at 15-18, 20-21 (reviewing studies showing safety and efficacy of medical transition procedures) );

• Supplemental Report Topic 5 and Second Supplemental Report Topic 2, concerning whether there is any dispute over whether a person's status as transgender can be changed (see

id. at 8, 19-20 (defining "gender identity" as generally immutable, and discussing danger of treatment for transgender individuals seeking to align gender identity with natal sex) );

• Second Supplemental Report Topic 2, addressing whether treatments aimed at aligning one's gender identity with the gender assigned at birth may be successful (see

id. at 19-20 (discussing positions of various medical associations about harm caused by such treatments) ); and

• Second Supplemental Report Topic 3, addressing the basis for statement that every major medical association recognizes the medical necessity of treatment for gender dysphoria (see

id. at 18-19 (summarizing positions) ).

At least one of Dr. Schechter's supplemental topics similarly falls within the topics addressed in his original report: Supplemental Report Topic 2, concerning whether insurance coverage is typically provided for medically necessary breast reduction

surgery due to back pain and related problems, as well as breast reconstruction post-mastectomy, falls within the scope of his initial opinions describing billing insurance codes. (See Schechter Original Rept. (dkt. # 106) 11-12.)

None of these opinions are new. As such, it is questionable whether supplementation was required at all. If plaintiffs had not filed supplemental reports, their experts would likely have been able to offer most, if not all, of this testimony at trial since it falls properly within their timely, original expert disclosures. Plaintiffs presumably supplemented in an effort to cover the specific arguments raised by defendants in their summary judgment briefs, largely relying on defendants' expert's deposition testimony. If anything, by providing defendants with this additional detail, plaintiffs ensured that defendants would not be blind-sided at trial and helped avoid otherwise needless dissection by the court as to whether some detail was adequately disclosed in the original expert reports. The court is not going to penalize plaintiffs for either effort. Regardless, as already alluded to, because the court ultimately concludes that defendants failed to put forth evidence in support of a finding that efficacy was a genuine, contemporaneous concern in the Government Insurance Board's decision to reinstate the exclusion, the dispute between the parties as to the efficacy of gender confirming surgery and hormone therapy is not material to the issues before the court on summary judgment.

A few topics, however, appear to extend beyond the opinions in the original reports. For Dr. Budge, Supplemental Report Topic 2 -- concerning the difference between gender dysphoria

and anxiety and mood disorders -- extends beyond her initial report, which was limited to defining gender dysphoria and the fact that it can cause depression and anxiety. Similarly, Supplemental Report Topic 4 -- concerning whether medical interventions can save transgender people's lives -- extends beyond her first report, although her first report did touch on suicide rates for transgender individuals. For Dr. Schechter, his supplemental opinions concerning whether cosmetic surgery is provided to treat depression and whether breast reconstructive surgery has both a reconstructive or functional aspect as well as a cosmetic component (see Supplemental Report Topics 1, 3 and 4, and Second Supplemental Report (dkt. ## 116, 137) ) extend beyond that offered in his original report.

Still, striking these arguably "new" opinions as a sanction under Rule 37(c)(1) would normally only be warranted if plaintiffs' supplemental reports were not "substantially justified" or "harmless." Again, here, these arguably new opinions were obviously offered in response to the expansive deposition testimony of defendants' expert Lawrence Mayer, M.D., M.S., Ph.D. Indeed, Mayer's report is quite thin and presents his opinions in a general manner without much detail. See Salgado , 150 F.3d at 742 ("Expert reports must include ‘how’ and ‘why’ the expert reached a particular result, not merely the expert's conclusory opinions."). For example, in opining on the studies on gender confirming surgery and hormone therapy in his report, Dr. Mayer simply states, "[t]he evidence that these interventions are safe, effective, and optimal is minimal," and cross-references three other sources. (Mayer Rept. (dkt. # 90) ¶ 21.)

At his deposition, however, Mayer expanded significantly on this opinion, providing more concrete and specific criticisms of studies that purport to show the efficacy of surgery, which go well beyond his report or even the review of these studies contained in his 2016 article and 2017 amicus brief -- two of the three sources cited in support of his original opinion. (Mayer Dep. (dkt. # 112) 49-60,...