States file brief in lawsuit to force VA to cover gender affirming surgery

A group of states filed a friend of the court brief supporting a transgender veterans group that filed a federal lawsuit against the U.S. Department of Veterans Affairs seeking gender-confirmation surgery for 163,000 transgender veterans.

The Transgender American Veterans Association lawsuit, filed last month, seeks an order that the Department of Veterans Affairs act on the group's 2016 rule-making petition for gender-confirmation surgery.

The federal agency provides medically necessary gender-affirming care to transgender veterans, but not gender-affirming surgical interventions due to an exclusion in the VA medical benefits package.

The attorneys general from eighteen states and the District of Columbia filed an amicus brief in support of the Transgender American Veterans Association's suit. They said by not offering gender-affirming surgery, the VA has failed to uphold its mission.

"The mission of the U.S. Department of Veterans Affairs is to fulfill President Abraham Lincoln's simple promise: 'to care for those who have served in our nation’s military and for their families, caregivers, and survivors,'" the attorney generals wrote. "Taken together, the regulation and implementing directive render President Lincoln's promise an empty one for many transgender veterans. Although the VA recognizes the existence of transgender veterans, the VA falls short of serving and caring for all veterans when it prevents transgender veterans from accessing medically necessary and potentially life-saving treatment."

The attorneys said such care was needed and the costs were insignificant.

"Transgender veterans with gender dysphoria are left without life-saving healthcare, and are vulnerable to physical suffering, depression, and suicidal ideation," they wrote. "Further, the VA's approach stands in tension with the experience of the amici States – which have found giving transgender people access to comprehensive healthcare, including medically necessary surgery – provides significant benefits at negligible costs."

Costs of such care vary widely. A 2022 article in "The Journal of Law, Medicine & Ethics" noted gender-affirming health care services can include mental health support, hormone therapy and reconstructive surgeries. It also noted that "scant information is available about the utilization or costs of these services." The peer-reviewed article found vaginoplasty and phalloplasty are often multi-episode procedures. The total average cost of vaginoplasty per person was $53,645. For phalloplasty, it was $133,911.

"Most importantly, in the amici States’ experience, the tangible benefits to public health and to the affected individuals greatly outweigh the cost of extending coverage," the attorneys general wrote. "This is because the mental health of transgender people markedly improves when they receive non-discriminatory healthcare."

Further, they said states and cities that offer such coverage have not seen a spike in costs. They also noted that not all transgender people seek surgery.

"The City of San Francisco, for example, initially charged employees a $1.70 premium to cover the cost of extending coverage to transgender people only to wholly eliminate that charge three years later because of low utilization rates," the attorneys general wrote. "Similarly, the City of Seattle easily absorbed the predicted increase of $200,000 for extending coverage because the amount represented just two-tenths of one percent of Seattle’s total $105 million healthcare budget."

The Department of Veterans Affairs does not comment on pending lawsuits. However, U.S. Secretary of Veterans Affairs Denis McDonough announced more than two years ago that VA would provide gender confirmation surgery. At the time of the announcement, McDonough said it would take time.

The brief was signed by the attorneys general of Washington, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island and Vermont.