Yearslong Delay in Covering Transgender Surgeries Prompts Lawsuit Against VA

by Braxton Taylor

A group of transgender veterans is suing the Department of Veterans Affairs over its delay in offering gender-affirming surgery, something the Biden administration said it was going to do two and a half years ago.

In a lawsuit being filed Thursday, the Transgender American Veterans Association, or TAVA, accused the VA of leaving transgender veterans in a state of limbo with vague promises to eventually offer the often lifesaving surgeries.

“What am I supposed to tell my transgender veterans that are trying to commit suicide because they can’t see themselves in their body?” Bekky Eshler, president of TAVA, told Military.com in a phone interview. “We’ve been trying to be friendly with the VA. We’ve worked with them really well. But at the end of the day, you got to keep your promises.”

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In June 2021, VA Secretary Denis McDonough announced the department would cover gender-affirmation surgeries for transgender veterans, part of a flurry of moves in the early days of the Biden administration to signal support for LGBTQ+ Americans. President Joe Biden also lifted the ban on transgender Americans serving openly in the military exactly three years ago Thursday, an anniversary the lawsuit intentionally coincides with.

McDonough’s announcement kicked off a formal rulemaking process, a way to change federal regulations that can sometimes take years. The department typically updates medical coverage through the rulemaking process.

At the time of McDonough’s announcement, the VA said it expected the rulemaking process for transgender surgeries to take about two years. But two years later, the department said it had no timeline for offering the procedures. In June, McDonough said the policy was awaiting his approval without explaining why he was delaying his decision.

The VA covers other gender-affirming care, including hormone therapy, mental health care, pre- and post-operative care, voice coaching and medically necessary prosthetics. But surgery itself is explicitly banned from coverage.

Thursday’s lawsuit makes good on a warning TAVA and its lawyers at the Veterans Legal Services Clinic at Yale Law School issued in a November letter to the VA.

The November letter demanded the VA respond to a petition TAVA first filed in 2016 calling on the department to cover gender-affirmation surgeries. The petition was filed under the Administrative Procedure Act, which requires agencies to respond to petitions “within a reasonable time.”

The VA responded to the November letter a month later, but the response offered only the same vague promises that department officials have made in public, said Sonora Taffa, a law student intern with the Yale clinic. While Taffa said an ideal outcome from the lawsuit would be for the VA to begin offering surgeries, the lawsuit itself narrowly asks for the department to fulfill its legal obligation to respond to the 2016 petition.

“It’s really, really low-hanging fruit for the VA, and it just goes to show how egregious it is that they have not said yes or no, either way,” Taffa said. “They’re just delaying, delaying, delaying, and this [legal action] is just asking for clarity and for a response.”

The VA declined Wednesday to comment on pending litigation, but in general reiterated that the surgery policy “is being considered carefully and thoroughly, with full understanding of its importance and urgency.”

“It’s our mission at VA to provide transgender veterans — and all veterans — with the world-class care and benefits they deserve,” VA spokesperson Terrence Hayes said in an emailed statement. “We thank each and every one of these heroes for their service and sacrifice, and we will continue to work to serve them as well as they have served our nation.”

Transgender veterans are also worried the window of time for the VA to take action could be narrowing with the presidential election this coming November, said Eshler, TAVA’s president. Former President Donald Trump, the likely GOP presidential nominee for this election, imposed the ban on openly serving transgender troops in his first term.

“Even if [the VA] responded favorably [to the petition], we’re still looking at another year and a half probably until surgeries would even be able to be offered,” Eshler said. “If they respond favorably, it would give us a better foothold if the White House does change hands.”

In the meantime, veterans’ lives are at risk, the lawsuit argues, highlighting the case of Natalie Kastner.

In 2022, despondent that she had no path to getting gender-affirmation surgery and during a particularly rough episode of gender dysphoria, Kastner cut off her own testicle, severing an artery in the process.

Kastner managed to drive herself to an emergency room in time to save her life. When she later developed a cyst because of what happened, her VA doctor told her to get treatment outside the VA, she said. And when she told her LGBTQ+ care coordinator at her local VA hospital about the incident, she said the response was “that’s nice, have a nice day.”

“They are letting us die,” Kastner told Military.com in a phone interview. “They are letting us needlessly die.”

Related: Transgender Veterans Group Threatens VA with Lawsuit over Yearslong Delay in Covering Surgeries

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