An advocacy group for transgender veterans is threatening to sue the Department of Veterans Affairs over its delay in offering gender-affirming surgery.
In a letter Monday to the VA's top lawyer, lawyers for the Transgender American Veterans Association, or TAVA, said not providing the surgeries has "increased risk of physical harm, psychological distress and suicide" for transgender veterans.
"VA has placed TAVA and its members in an unstable state of limbo, wherein they are repeatedly assured by the secretary that VA-provided [gender-affirmation surgery] will be available, but are given no indication of when nor which procedures will be covered," lawyers from the Veterans Legal Services Clinic at Yale Law School, which is representing TAVA, wrote in the letter.
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The letter says transgender veterans have delayed medically necessary surgeries due to VA Secretary Denis McDonough's promises with the expectation they could use VA health care instead of expensive private treatments.
"But absent action from the secretary, this waiting period may only exacerbate the mental health risks detailed above," the lawyers wrote.
Asked for comment on the letter, a VA spokesperson said the policy on gender-affirmation surgeries is still in the works and is "being considered carefully and thoroughly, with full understanding of its importance and urgency."
"It's our mission at VA to provide transgender veterans -- and all veterans -- with the world-class care and benefits they deserve," VA Press Secretary Terrence Hayes said in an emailed statement. "We thank each and every one of these heroes for their service and sacrifice, and we will continue to work to serve them as well as they have served our nation."
McDonough announced in June 2021 that the department would cover gender-affirmation surgeries for transgender veterans, part of a flurry of moves in the early days of the Biden administration to signal support for LGBTQ+ Americans. His announcement kicked off a formal rulemaking process, a sometimes lengthy undertaking for changing federal regulations that the department typically uses for updates in medical coverage.
At the time, the VA said it expected the rulemaking process for transgender surgeries to take about two years. But two years later, the department said it had no timeline for offering the procedures. In June, McDonough said the policy was awaiting his approval without explaining why he was delaying his decision.
Monday's statement from Hayes said the department would provide updates on the policy "as soon as they are available."
The VA covers other gender-affirming care, including hormone therapy, mental health care, pre- and post-operative care, voice coaching and medically necessary prosthetics. But surgery itself is explicitly banned from coverage.
TAVA first petitioned the VA to cover gender-affirmation surgeries in 2016 and previously filed a lawsuit over the issue in 2017. That lawsuit compelled the Trump administration to solicit public comment on VA coverage of transgender surgeries, a key step in the rulemaking process, despite that administration having no intent of providing the coverage.
TAVA's original petition was filed under the Administrative Procedure Act, which allows any member of the public to petition the government to undertake the federal rulemaking process. The agency that receives the petition does not have to grant the request, but does have to consider it and respond "within a reasonable time," according to the Congressional Research Service.
Noting that it's been more than seven years since TAVA first filed its petition, the organization's lawyers argued Monday that the VA has violated its legal obligations to "refrain from engaging in unreasonable delay" and so the organization is entitled to take the department to court.
TAVA is specifically demanding the VA publish the formal rule in the Federal Register, noting that public comment was collected after the earlier lawsuit and that a public notice published in April 2022 said a legally required cost-benefit analysis is done. If the VA does not respond to the letter in 30 days, TAVA "will have no choice but to proceed with an enforcement action," the lawyers wrote.
"This silence consigns transgender veterans who rely on VA health care for transition care to a liminal state wherein VA's official actions are entirely discordant with its public statements and internal preparations," the letter said. "VA's refusal to make these statements and preparations official is an insult to the transgender veterans who have made enormous sacrifices to serve their country and who are entitled to medically necessary health care, including [gender-affirmation surgery], as a result."
The letter was timed to coincide with Monday's Transgender Day of Remembrance, an annual observance memorializing people killed in anti-transgender violence. At least 26 transgender and gender-nonconforming Americans have been killed this year, LGBTQ+ advocacy group the Human Rights Campaign said Monday.
President Joe Biden marked the occasion by touting his administration's efforts to "strengthen the rights and protect the safety of transgender and all LGBTQ+ Americans." The statement highlighted that he lifted the ban on transgender military service, but made no mention of the VA's promise to cover gender-affirmation surgery.
"We must never be silent in the face of hate," Biden said. "As we mourn the loss of transgender Americans taken too soon this year, we must also recommit ourselves to never stop fighting until all Americans can live free from discrimination."
-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on X @reporterkheel.
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