We live in interesting times for transgender people.
On one hand, we see great strides in trans equality. We have 18 states and hundreds of municipalities that have passed civil rights protections for transgender people, and it looks like this is the year that Massachusetts will add public accommodations protections covering gender identity to the ones it already has regarding housing and employment. On the other hand, we live in times where North Carolina has passed the draconian House Bill 2, which limits transgender people to bathrooms based on the gender found on their birth certificates.
It's often by federal lawsuits that ordinary equality, as suffragette Alice Paul referred to civil rights and equality, is sorted out.
A lawsuit was filed recently that made little news, lost to the headlines of HB 2 and the Department of Education telling America's 13,000-plus school districts that they must accommodate transgender students in accordance with Title IX. This little-heard-of lawsuit was filed by the Transgender Law Center and Lambda Legal, with co-counsel WilmerHale, and in it they've petitioned the U.S. Department of Veterans Affairs to change the rule that categorically excludes transition-related surgery for transgender veterans.
For a bit of background, in June of 2011, many of us transgender veterans were pretty excited when the VA announced a standardized policy of respectful and affirming delivery of health care for transgender and intersex veterans. The policy required equal access to affirmative basic health care for transgender veterans across every VA facility — which surprisingly wasn't uniform across the country — and that all medically necessary health care for transgender veterans was and still is to be provided by the VA.
Well, almost all medically necessary health care. Under existing VA regulations, transition-related surgeries — also referred to as gender-affirmation surgeries — aren't performed by or paid for by the VA. In fact, VHA Directive 2013-003 (Providing Health Care For Transgender And Intersex Veterans) states under line item 2.b. "[The] VA does not provide sex reassignment surgery or plastic reconstructive surgery for strictly cosmetic purposes."
Yet as far back as 2008, the American Medical Association stated in a resolution, "An established body of medical research demonstrates the effectiveness and medical necessity of mental health care, hormone therapy and sex reassignment surgery as forms of therapeutic treatment." the World Professional Association for Transgender Health specifically states, "The medical procedures attendant to sex reassignment are not 'cosmetic' or 'elective' or for the mere convenience of the patient. These reconstructive procedures are not optional in any meaningful sense, but are understood to be medically necessary for the treatment of the diagnosed condition."
The American Medical Association, the American Psychiatric Association, and the American Psychological Association have all spoken to the importance of transition-related surgeries as medically necessary.
Medicare even covers transition-related surgeries as medically necessary at this point. The National Center for Transgender Equality's website states, "That exclusion was eliminated in May 2014, and there is now no national exclusion for transition-related health care under Medicare. This means that coverage decisions for transition-related surgeries will be made individually on the basis of medical need and applicable standards of care, similar to other doctor or hospital services under Medicare." The overturning of Medicare's blanket transition-related surgery ban — a ban that had been in place since 1981 — can be traced to a lawsuit won by Denee Mallon in 2014.
"The VA exclusion for transgender surgical care is outdated and needs to be removed." says Sasha J. Buchert, staff attorney and policy counsel at the Transgender Law Center. "The blanket exclusion is inconsistent with Medicare, the Affordable Care Act, all of the federal employee health care plans, and 15 states who prohibit such categorical exclusions because they understand that transition-related surgeries are clinically effective, medically necessary and lifesaving."
But here we are in 2016, with the conflicting reality of Medicare covering transition-related surgeries as medically necessary and the VA still calling the same surgeries cosmetic. In this political climate, VA leadership very likely knows that if it changes its transgender and intersex health care directive to conform with current medical consensus on transition-related surgeries, conservative Congress members will no doubt accuse the VA of accommodating sexually deluded, mentally disordered people with taxpayer dollars. Moderate lawmakers may even join in. It's not as if defending transgender veterans' rights to medically necessary surgery will win many votes at election time, but grandstanding over "wasting taxpayer dollars" might.
There is then what President Obama said about LGBT families at the Human Rights Campaign dinner in 2009: "It's so important that you continue to speak out, that you continue to set an example, that you continue to pressure leaders — including me."
Given political realities, it's unlikely that the VA will ever cover transition-related surgeries without legal pressure.
So, the Transgender Law Center and Lambda Legal, with co-counsel WilmerHale, petitioned with Department of Veterans Affairs to change that rule that categorically excludes transition-related surgery for transgender veterans. The veterans named in the lawsuit are Dee Fulcher, 54, a transgender female veteran of the United States Marine Corps, and Gio Silva, 26, an Army male veteran who lives in Denver.
At a time where national discussion of transgender issues seems firmly stuck in defining transgender people solely in terms of which bathrooms transgender people are deemed safe to use, it shouldn't be lost on anyone in the LGBT community or the broader society, for that matter, that one of the primary concerns of just about every trans community member is access to appropriate medical care. It's why this lawsuit, while not gathering much attention in the press, is so important: For a good number of transgender veterans, their primary health care provider is the Department of Veterans Affairs.
"It is time for the VA to end their blanket exclusion and to provide complete health care coverage for our transgender veterans," says Buchert.
It's a shame though that the end of the VA's blanket exclusion is likely going to be ended with legal pressure; it's a shame there has to be a lawsuit when we know, from the outcome of Denee Mallon's Medicare lawsuit, what the outcome of this lawsuit against the VA is most likely going to be.
AUTUMN SANDEEN is a disabled U.S. Navy retiree and transgender activist. Follow her on Twitter @AutumnSandeen.