Trump DOJ backs private insurance company that court found discriminated against trans patients

President Donald Trump’s Justice Department is backing Premera Blue Cross in its effort to overturn a federal court ruling that found the private insurer’s restrictions on gender-affirming care discriminatory.

The Justice Department filed a 39-page amicus brief Monday in the 9th U.S. Circuit Court of Appeals, arguing that Premera’s policy limiting coverage of gender-affirming surgeries for minors discriminates on the basis of diagnosis and age, not sex. The filing was submitted by the department’s Civil Rights Division under Assistant Attorney General Harmeet Dhillon.

“To be sure, a competent adult may choose to undergo cosmetic surgery simply because he wishes to do so. Thus, competent adults routinely undergo rhinoplasty, breast enlargements, lobuloplasty, and a myriad of other cosmetic procedures,” the brief states. “But these procedures are often not medically necessary, and therefore are not covered by insurance.”

Related: Insurer illegally discriminated by denying trans teens coverage for top surgery, court rules

The brief also asserts that people who underwent surgery “showed a higher prevalence of depression and anxiety as compared to those without surgery.” That assertion cites a study published last year in The Journal of Sexual Medicine that concluded gender-affirming surgery is beneficial in affirming gender identity but associated with increased mental health risks.

But the study did not establish that surgery caused those outcomes. The Public Health Communications Collaborative noted that researchers compared separate groups of patients rather than measuring participants’ mental health before and after surgery, meaning the findings cannot show that surgery worsened their mental health. Other research led by the Harvard T.H. Chan School of Public Health has associated gender-affirming surgery with lower psychological distress and suicidal ideation among transgender and gender-diverse people who wanted such care.

Premera is appealing a ruling issued last year by a federal court in Washington state after the insurer declined to cover top surgery for two teenage patients. U.S. District Judge Thomas Zilly ruled that Premera, by not covering “procedures known as mastectomy, breast reduction, or chest or top surgery” for trans and nonbinary minors while covering comparable procedures for cisgender youth, violated the Affordable Care Act by “facially discriminating on the basis of sex.”

Zilly denied the plaintiffs’ age discrimination claims, saying they had failed to exhaust all administrative remedies, and declined to grant their lawsuit class-action status.

In August, the judge affirmed the ruling despite the U.S. Supreme Court’s decision in United States v. Skrmetti, which upheld a Tennessee ban on gender-affirming care for minors. Zilly said the decision did not control the case involving the Washington teenagers.

Related: Families ask judge to block Trump DOJ nationwide from getting trans kids’ medical records

Lambda Legal said Zilly’s ruling marked a victory for access to transgender health care.

“The Constitution only sets a floor, not a ceiling—federal and state anti-discrimination laws like Section 1557 of the ACA may establish civil rights that rise above that recognized by the Supreme Court under the Constitution,” said Lambda Legal Counsel and Health Care Strategist Omar Gonzalez-Pagan.

“The district court here not only recognized that the scope of the protections under Section 1557 of the Affordable Care Act differ from what the Supreme Court recognized under the Fourteenth Amendment in Skrmetti, but also determined that Premera’s coverage exclusion constituted sex discrimination on its face. This ruling underscores that other avenues remain open to challenging anti-transgender discrimination in health care, notwithstanding the Supreme Court’s ruling in Skrmetti.”

But the Justice Department argues in its new brief that the lower court got that wrong. The department argues that Skrmetti established that “regulating medical procedures on the basis of diagnosis does not automatically amount to discrimination on the basis of sex.”

“The district court’s conclusion to the contrary was erroneous and conflicts with binding authority from the Supreme Court and this Court, as well as the decisions of the Fourth and Eleventh Circuits,” the new brief states.