Late yesterday, Lambda Legal and Transgender Law Center, with co-counsel WilmerHale, petitioned with the US Department of Veterans Affairs (VA) to change the rule that categorically excludes transition-related surgery for transgender veterans. The petition was filed on behalf of two individual veterans, Dee Fulcher and Gio Silva, and a group representing transgender veterans, the Transgender American Veterans Association (TAVA).
Congress passed the Veterans Health Care Eligibility Reform Act in 1996 to ensure that the medical needs of all American veterans would be met under the VA health care system. The VA later adopted this discriminatory rule that singles out transgender veterans and excludes coverage for medically necessary surgery to treat gender dysphoria, even when the identical surgeries are covered for non-transgender veterans. The VA recognizes the importance of treating gender dysphoria as a medical condition by covering hormone therapy, but irrationally denies surgical care, even though the same surgeries are covered for non-transgender veterans. The VA’s rule is so inconsistent that it can have no purpose other than to discriminate against transgender veterans.
Dee Fulcher, 54, is a transgender woman veteran of the United States Marine Corps who lives in Slidell, Louisiana. She is the parent of four children and the grandmother of twins. Dee served in the Marine Corps for eleven years where she specialized in hydraulic systems for helicopters. Dee achieved the rank of Platoon Sergeant and received several awards before being honorably discharged in 1992. Dee was diagnosed with gender dysphoria and began hormone therapy in December 2013. While Dee’s physician recommends reassignment surgery, she was informed by her doctor that no transition-related procedures would be covered by the VA.
“I feel like I am being made less of a person and it is devastating for me, both emotionally and for my physical health, that it is excruciating to be trapped in gender purgatory because the surgery I need is denied through the VA because I’m transgender,” Dee Fulcher said. “I served my country with pride and I should be treated just like my fellow veterans who have access to the treatment they need.”
“Thousands of veterans like Dee are being denied coverage for a medically necessary procedure specifically because they are transgender. This policy prohibiting transition-related surgery is discriminatory and harms the health of veterans who have already risked so much for our country,” Lambda Legal Transgender Rights Project Director M. Dru. Levasseur said. “The VA has taken important steps to address the needs of transgender veterans, but until this discriminatory regulation that bans medically necessary surgeries is amended or repealed, our transgender veterans will continue to suffer.”
Gio Silva, 26, is an Army veteran who lives in Denver, Colorado. He served in the Army from April 2008 to September 2012, when he medically retired. In July 2015, Gio’s physician recommended a mastectomy to treat his severe back pain, but in September 2015, while seeing a different doctor, Gio was told that the VA would not cover the common procedure because he is transgender. Gio suffers from physical and emotional pain because he is denied the surgery he needs.
“My doctor told me that I needed to have surgery because of my severe back pain, but simply because I am transgender, a procedure that is available to thousands of other veterans will not be covered by the VA for me,” said Gio. “I made a commitment to the Army and I kept it until I retired, but it is heartbreaking for me that this policy on transition-related surgery keeps the VA from upholding its duty to me.”
“Transgender people serve in the military at twice the rate of our peers, but we experience shocking rates of discrimination, homelessness, violence, and suicide upon our return from service,” said Transgender Law Center Staff Attorney Sasha Buchert, who is also a transgender woman and Marine Corps veteran. “By singling transgender veterans out for denial of medically necessary care, the VA is engaging in discrimination, pure and simple – with a devastating impact on the very people who should be able to count on the VA for support.”
TAVA is an organization that advocates on behalf of transgender veterans within the VA health care system. With over 2,200 members, TAVA is the only national organization focused exclusively on advocating and conducting educational outreach on behalf of transgender veterans.
“We hear stories from hundreds of our members just like Dee and Gio who are denied the care they need. The decision to cover a medically necessary procedure should not be unfairly prejudiced based upon one’s gender identity,” said Evan Young, National President of TAVA. “There is no conceivable reason to continue denying transition-related surgeries to veterans, other than to discriminate against them for being transgender. We are patriotic Americans who served our country honorably and deserve equality in healthcare just as any other veteran does.”
The petition filed Monday seeks to amend or repeal the rules that exclude medically necessary surgery for transgender veterans from the coverage provided to veterans through the VA. Lambda Legal and Transgender Law Center argue that the regulation is arbitrary and capricious and violates the Equal Protection clause of the Fifth Amendment by discriminating against transgender veterans on the basis of their sex and their transgender status.
Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.
Transgender Law Center is the leading national organization dedicated to advancing the rights of transgender and gender nonconforming people through litigation, policy advocacy, and public education so that all people can live safely, authentically, and free from discrimination regardless of their gender identity or expression. www.transgenderlawcenter.org