Washington, DC On April 15, an organization representing transgender veterans (Transgender American Veterans Association or “TAVA”) sued the Veterans Administration, over its failure to approve gender-affirming surgery at VA hospitals. The VA lawsuit argues that gender-confirmation surgery is medically necessary care and that the VA’s exclusion of this kind of care from the Veterans’ Medical Benefits Package violates:
Section 1557 of the Patient Protection and Affordable Care Act (ACA);
the Administrative Procedure Act (APA); and
the equal protection component of the Fifth Amendment to the Constitution.
Unlike the plaintiffs in a usual medical malpractice lawsuit who generally seek money damages, TAVA ultimately seeks to require the VA to change its rules to cover this specific surgery when a physician finds that it is necessary and appropriate.
The case for gender-confirmation surgery
The term “gender dysphoria” refers to the psychological distress that people may feel when their sex assigned at birth differs from their gender identity. People who are transgender may seek to resolve this distress in a variety of ways, including:
social affirmation – changing their name and pronouns;
legal affirmation – changing gender markers on government-issued documents;
medical affirmation – including pubertal suppression or gender-affirming hormones; and/or
surgical affirmation – which may include vaginoplasty, facial feminization surgery, breast augmentation or masculine chest reconstruction, among other things.
According to the petition in Transgender Veterans Association v. Secretary of Veterans Affairs, transgender veterans comprise a disproportionally high percentage of the transgender population, are more likely to rely on VA health care, more likely to be uninsured and more likely to face cost barriers to care. Untreated gender dysphoria has been associated with depression, self-harm and suicide.
The petition focuses solely on VA medical coverage for surgical forms of affirmation. The VA already covers non-surgical treatments, including hormone therapy. Further, as reported in The New York Times, the VA already covers 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.” The VA offers penile and testicular implants to non-transgender males whose penises or testes have been damaged, but not for those suffering from gender dysphoria.
To understand the legal positioning of the lawsuit, it is useful to look back at eight years of history.
Tarry, hinder and delay
On May 9, 2016, TAVA and two individual veterans filed a rulemaking petition asking the VA to include gender-confirmation surgery for transgender veterans in its medical benefits package. Technically, this is known as a “writ of mandamus,” which is essentially a legal order that requires a government official, agency or judge to act. A writ of mandamus is often seen as a “last ditch” effort to cure unreasonable delay, as for instance, when a federal judge simply refuses to rule on a case.
In 2021, VA Secretary Denis McDonough publicly signaled that he supported the policy, but the VA neither formally denied nor granted the petition. In January 2024, TAVA filed a federal lawsuit against the VA to force it to respond to the 2016 petition, saying the VA "unreasonably delayed" its response to the petition, leaving it in limbo.
On February 22, 2024, the VA finally denied TAVA’s 2016 petition. TAVA now seeks judicial review of the VA’s February denial. The latest salvo cites three interrelated legal reasons.
Administrative Procedure Act
The APA, enacted in 1946, sets out how federal agencies may make and enforce regulations. To obtain review under the APA, a person seeking review must have suffered a legal wrong or have been otherwise harmed by an agency action. A person can challenge an agency for withholding or unreasonably delaying a required action in an “arbitrary and capricious” way. TAVA now seeks judicial review of the VA’s denial for precisely those reasons.
Affordable Care Act
TAVA also argues that the VA’s denial of its request to expand VA coverage to include gender-confirming surgery violates Section 1557 of the ACA. Section 1557 prohibits discrimination on the basis of sex in federal healthcare programs. The Health and Human Services’ Office of Civil Rights has issued final regulations on Section 1557 that make clear that health care discrimination against LGBT people—particularly transgender and gender non-conforming people—is unlawful under existing federal law. The VA’s violation of the ACA also amounts to an additional violation of the APA, TAVA argues.
Fifth Amendment
When dealing with the federal government and its various instrumentalities, it is the Fifth Amendment that applies, not the Fourteenth Amendment. Unlike the Fourteenth Amendment, the Fifth Amendment contains no explicit equal protection clause, and it provides no guaranty against discriminatory legislation by Congress. Nevertheless, the Supreme Court has held that the due process clause of the Fifth Amendment implies that individuals are entitled to equal protections under the law and thus should be protected from discriminatory legislation. Thus, TAVA argues that the VA’s denial of the January petition also violates the Fifth Amendment to the Constitution.
On their face, TAVA’s arguments seem compelling but, of course, law is not the only determiner of the outcome. Politics will also play a role in this decision. And so, now we wait, again.
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