WASHINGTON — An advocacy group for transgender veterans has filed a lawsuit over the failure of the Department of Veterans Affairs to provide or pay for gender-affirming surgeries.
The federal lawsuit, filed Monday by the Transgender American Veterans Association, said the decision “amounts to discrimination on the basis of sex and transgender status” and threatens the health of veterans. It also accused the VA of letting the issue “languish” in the three years since the department’s secretary, Denis McDonough, said the administration would work to provide the surgeries.
In response to a request for comment, the department said it was unable to discuss the pending litigation.
Why it matters
The VA offers the majority of medical procedures known as gender-affirming care, including hormone therapy, prosthetics and hair removal. But veterans must seek surgeries outside of VA hospitals, where they have to rely on private health insurance coverage or pay the costs out of pocket.
Josie Caballero, the association’s acting president, said the cost could force veterans to settle for lower-quality care or delay care, heightening distress.
The National Center for Transgender Equality estimates there are more than 134,000 transgender veterans. In a VA survey of transgender and gender-nonconforming veterans conducted in 2022 and 2023, 78% of 6,600 respondents said they wanted gender-affirming surgeries. More than half said they had delayed or gone without treatment, and the majority cited cost as the reason.
VA doctors perform procedures that would be considered gender-reaffirming surgeries. For example, a mastectomy would be covered in order to treat or prevent breast cancer, but the same procedure is not covered for a veteran experiencing gender dysphoria. An exception is made when revising or treating complications from surgeries that were done outside the VA system.
“That is a deep frustration that a lot of veterans have,” Caballero said. “The surgeons are there. They just need the permission to do it.”
Background
Soon after President Joe Biden took office in 2021, McDonough announced that the administration would offer the surgeries. At the time, it was estimated that changing the health care benefits for transgender veterans could take years.
The advocacy group took the delay to court in January. McDonough responded with a letter denying the proposed policy change, saying the department was not ready “at this time.”
In a news conference days later, McDonough suggested that the availability of gender-affirming surgeries would be delayed until Dr. Shereef Elnahal, the department’s undersecretary for health, completed a review of the 2022 PACT Act, a law that expanded benefits for veterans.
“We’ve given him several months to do that,” McDonough said in February. He added, “VA remains committed to providing care to transgender vets, but we’re not ready at this point to initiate rulemaking addressing the specific regulatory changes proposed in the petition.”
What happens next
Lindsey Cormack, an associate professor at the Stevens Institute of Technology who studies veterans policies, said the administration was probably in the middle of the bureaucratic rulemaking process, trying to clear a legal path to make sure that expanding health care provisions to include gender-affirming surgeries is allowed under the PACT Act.
Cormack pointed out there had been other health care treatments that the VA did not offer, such as ketamine therapy or psychedelic drugs.
It is unclear how soon the policy can be changed to make gender-affirming surgeries available at VA hospitals. The department has only recently expanded other medical treatments to all veterans, such as offering in vitro fertilization to unmarried veterans and those in same-sex marriages.
The Transgender American Veterans Association is represented in this lawsuit by the Veterans Legal Services Clinic at Yale Law School, which successfully sued the department to make those fertility treatments more widely available.
“The veterans administration itself, it moves slow,” Cormack said. “It’s not a fast, expedient, changing thing.”