A group representing transgender veterans announced on Monday that they had filed a second lawsuit against the U.S. Department of Veterans Affairs over its refusal to provide gender-affirming surgery to veterans who need it.
“(Transgender American Veterans Association) will not stand idly by as VA continues to discriminate against and breaks its promises to transgender veterans,” said Josie Caballero, Acting President of TAVA. “VA’s refusal to provide gender-affirming surgery is an affront to the dignity and well-being of transgender veterans. Gender-affirming surgery is not a choice for many transgender individuals—it’s often a critical part of our care that healthcare professionals consider medically necessary. Denying us access to these puts our lives at risk.”
TAVA is being represented by the Veterans Legal Services Clinic, a clinic established and run out of Yale Law School.
Monday’s lawsuit is the latest legal step taken by TAVA to secure the right to gender-affirming surgery through the VA. TAVA submitted a formal rulemaking petition to the VA in 2016.
In 2021, U.S. Secretary of Veterans Affairs Denis McDonough announced that the VA would cover gender-affirming surgeries, but no action was taken beyond the announcement. TAVA initially sued the VA in January of this year, asking a court to force the VA to rule on its rulemaking petition after eight years. The VA denied the petition earlier this year. The new lawsuit seeks to challenge the VA’s denial of the rulemaking petition.
McDonough said during a press conference in late February that the VA would not move forward with providing gender affirming surgery until it had conducted an analysis of how the new rule would interact with the PACT Act. That act extends VA coverage to millions of veterans affected by toxic chemicals they interacted with due to burn pits, Agent Orange and other exposures. McDonough did not rule out the possibility of providing access to gender affirming surgery in the future. The VA estimated that 4,000 transgender veterans could qualify for gender affirming surgery, at a potential cost between $3.5 million to $78 million annually.
“Why has Secretary McDonough turned his back on the thousands of veterans who have been denied life-saving health care their VA doctors recommend?” said Jack Baisley, a law student intern with the Veterans Legal Services Clinic. “VA has a legal responsibility to provide comprehensive and inclusive healthcare to all veterans, regardless of gender identity. There is no good excuse for VA’s refusal to provide transgender veterans access to equal care. By denying transgender veterans access to gender-affirming surgery, VA is failing to fulfill its duty to those who have served our country.”
The VA declined to comment on the latest lawsuit but a spokesperson referred to comments McDonough made in February that “transgender veterans deserve world class healthcare and benefits, and gender affirming care should be available to any vet that needs it.”
In a letter to the VA from November 2023 sent by the Veterans Legal Services Clinic on behalf of TAVA, it is noted that the VA’s failure to provide gender-affirming surgery increased risks of physical harm, psychological distress, and suicide.
“Moreover, forcing veterans to seek gender-confirmation surgery outside of VA facilities disrupts their continuity of care, resulting in financial, physical and emotional harm. Transgender veterans are more likely than cisgender veterans to rely on VA healthcare, since they are more likely to be uninsured and to face cost barriers to care even when they have insurance,” the letter says.
The VA offers some gender affirming care, including psychological assessments for hormone therapy and gender affirming surgery, hormone therapy and gender affirming prosthetics.
