Transgender Vets Left Out In The Cold - Impact Fund & Allies File Amicus Brief

Lindsay Nako - Director of Litigation & Training, The Impact Fund

Lindsay Nako - Director of Litigation & Training, The Impact Fund

Impact Fund and allies file amicus brief in Fulcher v. Secretary of Veterans Affairs.

At a time when health care is on everyone’s mind, we can sleep a bit easier knowing that our veterans will not be left out in the cold. Their extraordinary service to our country is recognized in part by a safety net of coverage for medically necessary health care provided by the Department of Veterans Affairs.

Unless they are transgender.

The VA’s promise of medical coverage contains just a few categorical bans, one of which is coverage for “gender alterations,” which can include surgeries such as mastectomies or breast reconstructions. Despite offering hormone therapy and pre- and post-surgical care for transgender veterans, the VA refuses to cover the actual surgeries frequently identified as medically necessary to treat gender dysphoria, a serious medical condition caused by the distress that arises when a person’s gender identity differs from the sex assigned at birth. The VA continues to offer these same surgeries to cisgender (non-transgender) veterans.

Named plaintiffs, Gio Silva and Dee Fulcher

Named plaintiffs, Gio Silva and Dee Fulcher

In May 2016, Lambda Legal and Transgender Law Center filed a petition for rule-making on behalf of two transgender veterans, Dee Fulcher and Giuliano Silva, and the Transgender American Veterans Association. The petition asked the Secretary of Veterans Affairs to amend or repeal the rules and regulations that exclude medically necessary sex reassignment surgeries from the medical benefits packages provided to transgender veterans. The department effectively denied the petition when it stated in letters to Members of Congress that it would explore the requested regulatory change only “when appropriated funding is available.”

Denial of coverage for sex reassignment surgeries is sex discrimination

Denial of coverage for sex reassignment surgeries is sex discrimination

Last month, Lambda Legal and Transgender Law Center appealed the Secretary’s denial of the petition to the Federal Circuit, arguing in part that the denial of coverage for sex reassignment surgeries is sex discrimination that violates the Equal Protection Clause of the Fifth Amendment.

We agree. Standing in solidarity, we have authored an amicus brief filed on behalf of ourselves, Bay Area Lawyers for Individual Freedom (“BALIF”), the National Women’s Law Center, and thirteen other groups (listed below) who advocate for equal rights for women and the LGBT community.

Our Amicus Brief argues that the VA's prohibition violates the Fifth Amendment

Our Amicus Brief argues that the VA's prohibition violates the Fifth Amendment

Our brief describes the legal right of transgender people to be free from discrimination, whether based on their gender nonconformity, their transgender status, or their gender transition. It is our belief that the VA’s prohibition on coverage for sex reassignment surgery is sex discrimination and violates the Constitutional right to equal protection for over 134,000 transgender veterans.

The threat to transgender service members’ full and equal participation in the military continues. Just weeks after this issue was brought to the Federal Circuit, the House voted on an amendment to the annual defense authorization bill that would have ended a Pentagon policy of providing gender reassignment surgery and other therapies for active-duty transgender service members. It was narrowly defeated, 214-209. Shortly after, in late July, President Trump announced via Twitter a complete ban on transgender people serving in the military. The Chairman of the Joint Chiefs of Staff responded that the current inclusive policy would not be changed, until further guidance has been issued by the White House.

The VA promises veterans coverage for medically necessary treatments. This promise should be fulfilled equally for all veterans regardless of their gender, including their cisgender or transgender status. That’s why we stand with our allies in public opposition to this discriminatory policy, which flies in the face of the Fifth Amendment’s promise of equal protection.