May 23, 2024

A group of transgender veterans is renewing its legal fight with the Department of Veterans Affairs over the VA’s lack of coverage for gender-affirmation surgeries.

The Transgender American Veterans Association, or TAVA, filed a lawsuit Monday in federal court seeking to compel the VA to cover the surgeries, its second lawsuit this year related to the issue.

“Every day of transgender veterans being denied this care increases the distress of gender dysphoria that is plaguing our community, and lifesaving, doctor-prescribed, transition-related health care is incredibly vital to the life satisfaction of veterans in our community,” Josie Caballero, acting president of TAVA, told Military.com in a phone interview Monday.

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“We’re hoping that this lawsuit provides more hope for transgender veterans to know that something’s going to move, something’s got to give,” Caballero added.

TAVA previously filed a lawsuit in January over the VA’s yearslong delay in covering surgeries for transgender veterans.

The earlier lawsuit sought to force the VA to formally respond to a petition TAVA first filed in 2016 calling on the department to cover the surgeries. In February, the VA denied TAVA’s petition, making the earlier lawsuit moot.

The VA estimated in 2021 that about 4,000 transgender veterans could qualify for surgeries. Covering surgery could cost the VA anywhere from $3.5 million to $78 million annually, depending on the number of patients and the types of surgeries they get, according to a 2016 VA analysis.

In its denial, the VA said it was not ready to offer the surgeries because it has to study how VA enrollment of transgender veterans will be affected by the PACT Act, which expanded eligibility for VA health care to millions more veterans. Still, VA Secretary Denis McDonough did not rule out providing the surgeries once the PACT Act analysis is done.

“While we’re considering this for further analysis, VA will continue to provide all other types of gender-affirming care to veterans,” McDonough said in February. “To all LGBTQ+ veterans and to all veterans, I just want to be 100% clear that VA is 100% committed to providing you world-class care and a safe, welcoming and discrimination-free environment. Every veteran and every VA employee should feel respected and treated with dignity at VA.”

McDonough announced in June 2021 the department would cover gender-affirmation surgeries, part of a flurry of moves in the early days of the Biden administration to signal support for LGBTQ+ Americans. The announcement was meant to kick off a formal rulemaking process, a way to change federal regulations that the VA said in 2021 would take about two years, but the proposed rule has been sitting on McDonough’s desk ever since.

Caballero said another legal challenge from TAVA is necessary because McDonough’s response to the organization’s petition was “contradictory” since he denied the petition while also not ruling out covering the surgeries one day.

The lawsuit itself calls McDonough’s denial an “arbitrary and capricious” violation of the Administrative Procedure Act, as well as a violation of the Fifth Amendment’s guarantee of equal protection and due process rights. The Administrative Procedure Act is the law that governs the federal rulemaking process and says courts can invalidate actions by government agencies if they are arbitrary or capricious.

“VA’s rejection of TAVA’s petition for rulemaking after nearly eight years of letting the petition languish — and nearly three years of promises to provide the coverage it requested,” the lawsuit says, “demonstrates the agency’s failure to take seriously the needs of transgender veterans, the inadequacy of the care it currently provides and the urgent need for reform.”

Related: VA Won’t Cover Gender-Affirmation Surgery for Transgender Veterans Until It Reviews PACT Act Effects

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