Pro Bono Innovators 2023 Honoree Willkie Farr & Gallagher

In our 2023 issue of Pro Bono Innovators, Bloomberg Law honors Willkie Farr & Gallagher for its work securing transgender health care rights including winning a landmark ruling in Georgia federal court concluding that employers who refuse to cover gender-affirming care for employees violate federal law. The firm is also honored for its work expanding dental coverage for about five million Medicaid recipients in New York state.

Your firm’s pro bono work included representing a transgender law enforcement officer in Georgia who was denied medically necessary, gender affirming care. You also worked on Ciaramella v. McDonald, a challenge to New York’s limitation on Medicaid coverage for some dental procedures, which resulted in a settlement agreement expanding care for low- income state residents. How did your firm strategize on how to approach these matters?

When strategizing about Ciaramella v. McDonald, Willkie followed much of the playbook that we previously developed in Cruz v. Zucker, in which Willkie teamed up with the Legal Aid Society to successfully challenge New York’s ban on providing medically necessary care to transgender Medicaid recipients.

The same Medicaid law that applied to transition-related medical care governed dental benefits. This was critical, particularly given that our adversary — Department of Health— and opposing counsel — the New York attorney general’s office — were the same in both cases, so they knew we were well equipped to repeat our success.

Also, here as in Cruz, Willkie leveraged Legal Aid’s incredible subject-matter expertise, including experience representing individual Medicaid recipients and navigating archaic rules. In conjunction, Willkie leveraged its class action litigation expertise to defeat a motion to dismiss, engage in extensive fact and expert discovery, and ultimately to drive toward a settlement.

Willkie, along with its partner non-profit the Transgender Legal Defense and Education Fund (TLDEF), then took on the challenge of seeking a similar ruling on transgender medical care in the south in the Lange case. Having pioneered the earlier Cruz case, we were well-positioned to duplicate Willkie’s success.

The strategy paid off, as the team was already prepared for the government’s typical stonewall defenses, after defeating them in New York. Willkie continued to innovate, however, by highlighting the hypocrisy of the local government spending more than a million taxpayer dollars fighting to keep the exclusion instead of paying a fraction of that for Sgt. Lange’s medically necessary surgery.

What were the most innovative aspects of two of your client matters in your view? And who took the lead on driving innovation with the work?

In Lange and Ciaramella, the most innovative aspect of our work was our team’s focus on holding government entities accountable for denying health care coverage.

In Lange, we named Houston County, Georgia as a defendant. As governments are subject to open records laws, we filed requests for Houston County’s legal fees – exposing how the county spent more than $1 million in public money in its failed attempt to keep the exclusion. The county’s use of public funds sparked outrage because the legal fees were exponentially more than the cost of surgery, leading to headlines like: This Georgia County Spent $1 Million to Avoid Paying for One Employee’s Gender-Affirming Care.

Our innovative litigation strategy asserted multiple causes of action to maximize our chance of creating much-needed law. After defeating arguments on a motion to dismiss and following months of discovery, we secured a landmark ruling on summary judgment that the healthcare exclusion violated Title VII--without needing to go to trial -- a very rare accomplishment for any Title VII plaintiff, let alone one pursuing transgender rights.

We then went to trial seeking compensatory damages for the years Sgt. Lange was denied coverage. Anticipating a possibly unsympathetic jury pool in central Georgia, we crafted a simple narrative through opening, witness testimony, and closing--that the case was about the county’s and sheriff’s breach of fundamental fairness denying Sgt. Lange the care she needs just because she is different, and the pain she suffered each day her employer and colleagues treated her this way. Our strategy worked – the jury awarded her $60,000, more than a year of her salary.

Similarly, in Ciaramella, we named the New York State Department of Health as a defendant. Our innovative approach was to leverage the law we made under the federal Medicaid Act in Cruz v. Zucker, another case we brought challenging DOH’s blanket denial of Medicaid coverage for treatment for gender dysphoria. Having secured an injunction in Cruz requiring DOH to fund all medically necessary care for transgender Medicaid enrollees, we used the same body of law and our prior experience litigating against DOH to secure medically necessary dental care in Ciaramella.

This time, after over two years of aggressive litigation, we persuaded DOH to grant substantially all of the relief sought as part of a complex, comprehensive settlement. It took multiple mediation sessions over the course of the year to perfect the settlement, leading to a landmark outcome.

Tell us more about the impact of the matters on the local, national, and/or global level.

With legal and legislative attacks on the transgender community increasing throughout the US, efforts to affirm the rights of transgender individuals are more important than ever. The shifting legal landscape around access to gender-affirming care for transgender patients is emerging as a battleground in efforts to restrict transgender individuals’ rights.

The American Medical Association reports that 25% of transgender patients who sought coverage for hormones in the past year were denied, and 55% of those who sought coverage for transition-related surgery in the past year were denied; meanwhile, receipt of gender-affirming care is linked to reductions in the rate of suicide attempts, decreased rates of depression and anxiety, decreased substance use and more.

Our work in Lange, which affirmed that an employer cannot exclude coverage for gender-affirming care under its employee health insurance plan, sets a precedent which will protect other transgender individuals against discriminatory policies intended to deny them insurance coverage for medically necessary gender-affirming care.

Our work in Ciaramella is expected to impact approximately five million New Yorkers with Medicaid coverage statewide, due to landmark changes to law mandating expanded dental coverage, including both new dental coverage benefits and a significant broadening of existing benefits. As a result, New Yorkers on Medicaid will have access to coverage for crowns, root canals and other essential dental care, aligned with modern U.S. dental practice.

The changes acknowledge the critical connection between poor oral health and other health problems suffered by the Medicaid-eligible population. They are expected to result in long-term cost savings for New York state and its taxpayers by allowing Medicaid recipients to immediately address dental needs before they worsen and significantly impact overall health, requiring additional dental and/or medical attention.

Willkie’s success provides a blueprint for advocates in other states to challenge similar coverage restrictions.

Why do you think your team ultimately achieved successful results in these matters?

One of the reasons we achieved success in Lange was our tenacity. Defendants tried strategy to end the litigation and delay Sgt. Lange’s access to justice. This did not deter our team and only made us fight harder.

In addition, our legal team consisted entirely of women and attorneys who identify as members of the LGBTQ+ community. This brought additional passion to the case, knowing that our efforts impacted the community we are part of.

We achieved what no one else had before in the South--a federal court order finding that the healthcare exclusion violated Title VII, a permanent injunction mandating removal of the exclusion from the health plan, and a jury verdict awarding damages to Anna -- a historic victory in many regards.

In Ciaramella, the New York Department of Health knew that Willkie would not back down, based on its experience litigating against us in Cruz v. Zucker. In that case, where we partnered with the Legal Aid Society and the Sylvia Rivera Law Project, the DOH was found to have violated the Medicaid Act by banning medically necessary care to transgender Medicaid recipients.

Our success in that case led to a repeal of the ban and an amended regulation, requiring Medicaid coverage for transgender New Yorkers seeking medically necessary gender affirming treatment. And, since we had previously litigated a class action Medicaid coverage case against the New York DOH, we knew what to expect and we were able to apply strategies from the Cruz case to help the DOH understand the importance of expanding coverage in this case.

What did you do to celebrate when these matters were resolved?

For Ciaramella, we have yet to all celebrate this victory together, but we hope to, soon. We are also pleased to share that starting November 2nd, dental coverage for Medicaid-eligible New Yorkers was officially expanded in New York State pursuant to the terms of the settlement.

For Lange, we celebrated with Anna Lange and the full team at a dinner in Macon, Georgia. She also had her surgery in August and is doing really well.

Responses by Wesley Powell, litigation partner and pro bono practice co-chair; Jill Grant, counsel; M. Annie Houghton-Larsen, associate for the Ciaramella case; and Catherine Fata and Sean Lavin, associates for the Lange case.