Defense Department's insurance program ordered to cover gender-affirming surgery
Chief Judge
In what is apparently a case of "first impression" because neither the Supreme Court nor that
According to
The statute establishing TRICARE provides that coverage will not be provided for any surgery that "improves physical appearance" without "significantly restoring functions" and the exclusion includes "sex gender changes." A regulation issued under the statute repeats this exclusion, stating that TRICARE does not cover "any procedures related to sex gender changes" and another regulation bars any "surgery performed primarily for psychological reasons (such as psychogenic)." The plaintiffs argue that the exclusion discriminates against them because of their sex and transgender status, since gender-affirming surgery is available under TRICARE for cisgender individuals who require it for other reasons. For example, somebody identified as female at birth who seeks breast removal as part of treatment for breast cancer is covered, but removal as part of gender transition is not covered. The prohibition extends only to surgery, however. Hormone treatment is not excluded, even if it is for purposes of gender transition.
The court rejected the government's argument that gender transition would be excluded from coverage as "cosmetic surgery" intended to deal with a psychological problem rather than a medical one, crediting expert testimony that gender identity is "innate, impervious to external influences, and cannot be changed by medical or psychological intervention," and that "there is a scientific consensus that gender identity is biologically based." As such, treating gender dysphoria surgically is not, in the court's view, just a psychological procedure.
The court considered arguments that the exclusion was facially unconstitutional as written or, alternatively, unconstitutional as applied to persons in the position of these plaintiffs.
On the other hand, this is not how the
To get to that point, the court has to decide the standard of judicial review to apply to the case.
The court found that the government failed to do this. Instead, it focused its arguments on claiming that the plaintiffs lacked 'standing' to challenge the statutory and regulatory provisions and that the plaintiffs had never expressly challenged the regulation, stating that surgery for psychological reasons was not covered. Since the court accepted the evidence that gender-affirming surgery for persons with gender dysphoria is not excluded by the psychological exclusion provision, and the denial of coverage certainly supported the plaintiffs' standing, the court rejected the government's argument.
The bottom line is that the court granted summary judgment to the plaintiffs on their equal protection "as applied" challenge and issued a declaratory judgment to that effect, while ruling in favor of the government on its summary judgment motion to dismiss the "facial unconstitutionality" challenge, and refrained from ruling on the plaintiffs' request for a permanent injunction, waiting to see whether the government will change its interpretation of the statute and regulation to cure the constitutional problem.
Plaintiffs are represented by attorneys from
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