Elise Takahama: Judge: Premera Blue Cross discriminated against King County trans teens

May 12—Premera Blue Cross violated the Affordable Care Act when it refused to cover gender-affirming top surgeries for two transgender teenagers in King County, a federal judge in Seattle has ruled.

The case has spanned two years in U.S. District Court for Western Washington, and brings into question a medical policy of the Mountlake Terrace-based health insurer that denies coverage of gender-affirming mastectomies, or breast reductions, for trans patients under 18.

In a 32-page order, U.S. District Judge Thomas S. Zilly called Premera's policy "textbook sex discrimination," referencing a similar 2024 Fourth Circuit ruling that involved two lawsuits out of North Carolina and West Virginia.

The policy "treats juveniles in disparate ways depending on whether their 'biological sex' or sex assigned at birth is male or female," Zilly wrote. "Because the medical policy discriminates 'on the basis of sex,' it violates (the ACA)."

The two families involved in the Washington lawsuit reacted to the April 18 court decision with joy and relief.

"I'm very satisfied," said J.M., a high school senior identified by his initials in the lawsuit, and whose family joined the complaint against Premera last spring. The insurer initially denied coverage of his top surgery, which his medical providers and family supported, in 2023 when he was 16.

"When it comes to insurance, it feels like there's nothing you can do," said J.M., who's now 18 and asked to remain unnamed to protect his privacy and safety. "It's like a brick wall. So the concept of actually being able to do something about it was really exciting."

Premera said in a statement last week that it's aware of the recent order and is "reviewing the court's decision and evaluating our options moving forward."

"Premera takes our responsibilities under the Affordable Care Act seriously and strives to ensure that our policies comply with all applicable laws and regulations," the statement continued. "We remain dedicated to supporting the health and well-being of all individuals we serve."

Ele Hamburger, an attorney representing the families, said she hopes Zilly's ruling will push the health insurer to at last change its policy — which states mastectomies can be considered "medically necessary" for trans patients with a gender dysphoria diagnosis, but only if they're over 18.

Other Washington insurers, including Kaiser Permanente, Regence and Aetna, cover this care, Hamburger said.

Premera covers gender-affirming surgeries for trans adults, as well as other gender-affirming care for minors, including puberty blockers, hormone treatment and mental health care.

Yet a different policy also says mastectomies could be considered medically necessary for adults and adolescents with gynecomastia, a condition caused by a hormone imbalance that leads to "swelling of breast tissue in boys or men," the lawsuit says.

In other words, Premera does cover mastectomies for some under-18 patients, who are cisgender and male.

"I've litigated class action lawsuits for 30 years," Hamburger said in an interview last week. "And the way Premera has approached this case really stands out to me as markedly different. And the only way I can account for that is prejudice."

When the complaint was filed in 2023, Premera spokesperson Amanda Lansford said the policy had been "thoroughly researched" and was "based on the most current scientifically sound clinical evidence." But Hamburger said last week that those who testified on behalf of Premera brought "fake science" to court, including from a doctor who advocates for a form of conversion therapy, which is banned in Washington state.

Court records show Premera did grant some exceptions to its policy between 2019 and 2024 — and approved about 28 of the 63 requests it received for coverage of gender-affirming top surgery for patients under 18. However, the criteria developed for exceptions was "seemingly arbitrary," the complaint says.

Premera's internal reviewer, Dr. Robert Small, would consider an exception if the patient was experiencing rib/skeletal injury or significant wounds from chest binding, a practice used to compress breast tissue, or if the patient was experiencing self-harm due to gender dysphoria, according to court records.

Those considerations were not communicated to either family involved in the lawsuit, they said. A.B., who is now 17 and whose family was first to join the complaint, used to wear his binder almost everywhere, his father said in an interview. His family also requested to be identified only by initials to protect A.B.'s privacy and safety.

While his son hadn't experienced long-term skeletal or muscle damage, the binder was uncomfortable and painful to wear for long periods of time, his dad said.

"It's almost like Dr. Small needs to see some blood out of these trans kids before he's going to approve it," A.B.'s dad said. "That was particularly cruel and mean, and difficult to hear."

Small's criteria are not in line with the World Professional Association for Transgender Health standards of care, health care guidelines for trans and gender-nonconforming people developed by providers and patients. The guidance is generally regarded as best practice on gender-affirming care, Hamburger said.

"We needed to focus on his health, physical and mental," A.B.'s dad said. "And it was clear to everyone — us as a family, his pediatrician, his therapist, his gender care team — that (surgery) was an appropriate next step to treat his dysphoria."

Their family decided to schedule the procedure in spring 2023, even though Premera still refused to cover it. They know that's not an option for many others.

J.M. ended up waiting until he turned 18 to get his surgery, after appealing his case twice. He continued to receive denials from Premera, though the insurer had covered years of hormone prescriptions and consultations with medical and mental health providers, including at Seattle Children's gender clinic.

The procedure was the family's "financial priority," but the total cost without insurance coverage ended up being thousands more than they thought it would be, his mom said. At last, on New Year's Eve 2024, he got the surgery.

"I made lots and lots of terrible puns about that," J.M. said. "New year, new me."

He's recovered from the procedure well over the last few months and said the "general sense of wrongness" he felt with his body has evaporated. This summer, he's looking forward to continuing to work with kids at his synagogue, going to college to study animation — and shirtless days at the beach.

"My mind is in the state that my body is in now," he said. "It's a very natural feeling. I don't think about it all the time the way that I did before, which is nice."

A.B., a junior in high school, is also leading a busy life, filled with "normal 17-year-old things," his dad said.

"He's doing great. He's thriving," his mom added. "I just feel like we got our son back."

Premera can appeal Zilly's decision. But Hamburger added that Washington state law, which wasn't applicable in this federal case, also requires coverage of medically necessary gender-affirming care, regardless of age, and could be grounds to pursue future litigation if Premera continues to restrict coverage to trans kids here.

In the first four months of President Donald Trump's return to office, he's issued a number of executive orders that target trans and nonbinary people, attempting to restrict their right to serve in the military, play sports and get new passports, among others. One order aims to ban federal funding for pediatric gender-affirming care, which has led to off-and-on stops of care at Seattle Children's and other hospitals around the country.

Lawsuits over the federal orders have emerged in many states, including in Washington, and Hamburger speculated that Premera is likely waiting to see how other cases play out.

Although an appeal from Premera would be frustrating and disappointing, A.B.'s father said, he and his wife still hope Zilly's order is an encouraging message, and helps protect youth not just in Washington, but in all states where Premera does business, he said.

"It's not just about the one child," A.B.'s mother said. "It's about all children leading a full and healthy life."

Information from The Seattle Times archives was included in this report.

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