These 18 States Are Backing Lawsuit Against VA For Not Covering Sex-Change Surgeries For Veterans

(Photo credit should read DOMINICK REUTER/AFP via Getty Images)

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Micaela Burrow Investigative Reporter, Defense
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The attorneys general of eighteen states and the District of Columbia have filed an amicus brief in support of a lawsuit alleging the Department of Veterans Affairs is harming veterans by delaying a proposed policy to pay for sex change surgeries.

In the brief, filed Jan. 31, the eighteen states and the District of Columbia argue that the VA is discriminating against transgender veterans and harming the residents of their jurisdictions. Approving sex change surgeries, they argue, would not strain VA resources. A policy to allow the VA’s health system to cover major gender transition surgeries has stalled for reasons that remain unclear.

“Although the VA recognizes the existence of transgender veterans, the VA falls short of serving and caring for all veterans when it prevents transgender veterans from accessing medically necessary and potentially life-saving treatment,” the states say in their brief. “The VA’s longstanding and discriminatory regulation breaks faith with the more than 150,000 veterans, active duty service members, and members of the guard and reserves who identify as transgender,” they added, using a number based on a study published by the Williams Institute of the UCLA School of Law. (RELATED: EXCLUSIVE: Members Of Congress Call On VA To Reject Proposal For ‘Gender Affirming Surgical Center’)

The states of Washington, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachussetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island and Vermont joined in filing the brief as did the District of Columbia,

“The amici States strongly support the rights of transgender veterans to live with dignity, be free from discrimination, and have equal access to healthcare,” they wrote.

The Transgender American Veterans Association initiated the suit against the VA on Wednesday in an effort to force the VA to respond to the group’s 2016 petition to amend its regulation and allow gender change surgeries.

VA Secretary Denis McDonough pledged in 2021 to expand VA coverage to include “gender affirmation surgery,” reported. A final policy reached his desk in 2023, but he has not yet signed it.

The true number of veterans who claim to be transgender is not known, but in 2023 a center in Puget Sound, Washington that was planning to build a comprehensive transgender surgery center cited an estimated 12,500 veterans with clinical diagnoses of gender dysphoria.

US Veterans Affairs Secretary Denis McDonough speaks at in a town hall with veterans and veteran survivors in New Castle, Delaware, on December 16, 2022. - The town hall was a discussion on the expansion of benefits and services to veterans resulting from the Honoring our Promise to Address Comprehensive Toxics (PACT) Act of 2022.

(Photo by JIM WATSON/AFP via Getty Images)

Existing VA regulation allows the department to cover gender transition hormones, remedial surgeries and other gender transition procedures under its medical benefits package, a fact sheet shows. However, major cosmetic surgeries, including vaginoplasty and phalloplasty, are excluded.

The state AGs argued in the filing that excluding coverage for major operations threatens the welfare of their transgender veteran constituents, blocking them from allegedly “life-saving healthcare.” The argument that individuals with gender dysphoria may be vulnerable to suicide and other significant health affects without access to “gender affirming care” is commonly used to defend sex change operations, which come with major physical risks and often cause lifelong damage to the body’s systems.

The states, however, said the prohibited procedures are similar to the mastectomies and hysterectomies that are allowed under the VA medical system for treatment of cancer.

“The VA’s exclusionary regulations could not be based on safety concerns for transgender veterans, because they lack any medical support; instead, the VA’s regulations merely codify insidious discrimination into law,” they wrote.

The Department of Defense (DOD) banned openly transgender people from serving in the military until 2016, the states pointed out. Transgender service members reported retaliation and harm for their gender identity previously.

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