US military health plan unfairly excludes gender reassignment surgery, federal judge rules

(CN) — The U.S. military and its health insurance plan denying coverage of medically necessary gender transition surgeries for two transgender women was discriminatory, according to a federal judge in Maine who granted summary judgment on the women’s Fifth Amendment claims on Monday.

According to the statute, any surgery that “improves physical appearance” that does not “significantly restore functions” including “sex gender changes” is not covered by the U.S. military’s health insurance plan.

U.S. District Judge Nancy Torresen, a Barack Obama appointee, agreed with two women — identified in their suit as Jane Doe and Susan Roe, who receive health insurance through the U.S. military’s Tricare program as dependents of former servicemembers — that the exclusion violates the Equal Protection clause in the U.S. Constitution because it “expressly excludes sex gender changes from Tricare coverage.”

The women brought their claims against the U.S. Department of Defense, U.S. Defense Health Agency and the Tricare Health Plan, in addition to U.S. Secretary of Defense Lloyd J. Austin III.

Both have received at least one surgery involving gender dysphoria treatment and say they will need more surgeries in the future but claim the statutory exclusion discriminates based on sex and transgender status.

Torresen pointed to a separate ruling in the Fourth Circuit Court of Appeals that found coverage exclusions that only mention specific treatments are still facially discriminatory despite not explicitly mentioning transgender people.

“They were nonetheless facially discriminatory because they targeted treatments for gender dysphoria, which is inextricable from transgender status,” Torresen said in her decision.

Torresen added that the federal government failed to establish a “governmental objective” for the exclusion, which is necessary amid claims for Equal Protection violations.

“Because the defendants offer no justification for denying coverage of gender transition surgeries, they fall short of their burden under intermediate scrutiny to show the statutory exclusion is ‘substantially related to achieving an important governmental objective,’” Torreson said.

But while Torresen agreed the exclusion violates the Equal Protection clause for the two plaintiffs, she found that the exclusion is not facially unconstitutional, which would require a party to prove that “no set of circumstances exists under which the statute would be valid.”

Despite asserting a facial constitutional challenge, the plaintiffs do acknowledge in their claims that the exclusion does not encompass medically necessary gender transition surgeries.

“The plaintiffs’ facial challenge fails because, as they acknowledge, there is an interpretation of the statutory exclusion that does not violate their Equal Protection rights,” Torresen said.

Since the statutory exclusion can be interpreted as to allow gender transition surgery to treat “the debilitating symptoms of gender dysphoria” instead of simply to “improve physical appearance,” Torresen found that the statute survives a facially constitutional challenge.

As for standing, Torresen also disagreed with the government’s argument that the plaintiffs’ would be able to receive the surgeries under the U.S. military’s health insurance plan even if the court found the statutory exclusion was unconstitutional.

The government claimed that, because of a separate regulation that bars coverage of surgeries primarily for psychological reasons, the plaintiffs would still not be able to receive gender reassignment surgery.

Because gender transition surgery treats gender dysphoria, the government said, they would be excluded from receiving the surgery because it is qualified as a psychological condition.

But Torresen said that her finding that the exclusion is unconstitutional bars the government from enforcing the regulation, including the psychological condition provision.

“The legislative and regulatory history shows the statutory exclusion and the psychological reasons regulation are fundamentally related,” Torresen said. “They were both implemented to achieve the goal of eliminating the ‘costly’ practice of performing ‘nonmedical services’ such as ‘cosmetic surgery’ in military medical facilities.”

Neither party’s attorneys responded to a request for comment.

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