An advocacy group for transgender veterans is suing the government over its exclusion of gender-confirmation surgery in veterans’ health benefits.
The Department of Veterans Affairs covers almost all transition-related care for veterans, including hormone therapy, voice training, fertility preservation and hair removal. However, if trans veterans want to receive surgery — such as genital and breast procedures — they are required to either use private health insurance or pay out of pocket. Such operations are covered for active-duty service members.
The Transgender American Veterans Association, or TAVA, formed in 2003, filed a petition in May 2016 asking the VA to start a rulemaking process to amend its health benefits to cover gender-confirmation surgery for trans veterans. In the almost eight years since, the VA has not responded to or denied the petition, despite agency officials saying publicly over the years that the department will change the policy.
TAVA’s lawsuit, filed Thursday in the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., asks it to compel the VA to respond to its 2016 petition within a reasonable time.
TAVA President Rebekka Eshler told NBC News on Wednesday ahead of the filing that transgender veterans often email her asking when the policy will change, because they struggle with persistent gender dysphoria — and sometimes even suicidal ideation — when they can’t access the care they need. Gender dysphoria is the distress that results from a misalignment between someone’s sex assigned at birth and their gender identity.
“Enough is enough,” she said. “How can I stand here and keep saying, ‘Just be patient,’ and not do anything when these veterans are reaching out because they’re at death’s door? They can’t handle it anymore. This is about building this trust back with the VA. They keep using us for political gain, but not keeping their word and keeping their promise.”
Gary Kunich, a public affairs specialist for the VA, said the department does not comment on potential or pending litigation.
In June 2021, Veterans Affairs Secretary Denis McDonough announced that the department was “taking the first necessary steps to expand VA’s care to include gender confirmation surgery,” which he said would take time, CNN reported.
“But we are moving ahead, methodically, because we want this important change in policy to be implemented in a manner that has been thoroughly considered to ensure that the services made available to veterans meet VA’s rigorous standards of quality health care,” heh said at the time.
However, more than two years later, Eshler said, TAVA hasn’t received any updates on a policy change or a response to its 2016 petition, which makes it difficult for the group to move the process forward without a lawsuit.
In the meantime, Natalie Kastner, 39, a veteran who served as an Army combat engineer, said she has started to lose hope that the policy will ever change.
Shortly after she started hormone therapy about a year and a half ago, she told her doctor that she wanted to have an orchiectomy, or surgical removal of the testicles, for a variety of reasons. She is diabetic and was worried about the long-term effects of her testosterone blocker, spironolactone, on her kidneys, and she struggled with gender dysphoria. But her doctor told her that the VA excludes gender-affirming surgery from its benefits.
On March 5, 2022, Kastner said, she woke up feeling intense gender dysphoria. She went into the bathroom with a paring knife and scissors and removed her right testicle, severing an artery. A few hours later, she was bleeding badly enough that she drove herself to a hospital emergency room, where doctors were able to stitch the wound.
“That night I almost died,” sher said. “I almost died trying to fix myself, and I can only imagine other veterans out there who have done the same. They say that suicide rates amongst transgender individuals is high. How many of those were accidental? How many of those were someone who saw no options and, like me, took matters into their own hands? But unlike me, who was lucky, they weren’t.”
Trans people are two to three times more likely to serve in the military, and at least 10,000 trans veterans are currently receiving transition-related care through the VA, according to information shared on the department’s website.
TAVA’s lawsuit alleges that the VA’s “failure to provide gender-confirmation surgery puts transgender veterans at increased risk of physical harm, psychological distress, and suicide.”
The group notes that major medical associations have recognized that gender-confirmation surgery can be critical for the treatment of gender dysphoria. For example, a 2021 study published in JAMA Surgery found that gender-affirming procedures were associated with a 42% reduction in psychological distress and a 44% reduction in suicidal ideation when compared with transgender people who didn’t have surgery but wanted it.
The age- and sex-adjusted suicide rate among veterans in 2020 was 57.3% higher than the rate among nonveteran U.S. adults, according to the VA. Suicide-related events are 20 times more common for veterans with gender dysphoria, according to TAVA’s lawsuit, which cites a 2013 article published in the American Journal of Public Health.
Kastner, who said she has three children who “are everything to me,” said she didn’t want to die that night in March last year but wanted to “fix” her body to feel more like herself. She said she looked into getting private insurance, but she was told that there aren’t any private health insurance plans in Texas that will cover gender-confirmation surgery. Out of pocket, the surgery would cost her about $60,000, for which she wouldn’t be able to save as a disabled veteran on a fixed income.
“These surgeries are really lifesaving care,” she said. “The VA, they say they serve those who have served, and those words seem hollow right now.”
If the VA rejects TAVA’s petition, Eshler said, the group can continue pushing for change, citing the importance of such operations for veterans. If the VA says yes and agrees to start the formal rulemaking process, it could take about two years — including a public comment period — until a final rule is published.
“If they say yes, it gives us a little bit more room at the table to be like, ‘Hey, let’s continue this. Here’s some data. Let’s have a conversation,’” Eshler said.
