A federal judge in Maine ruled last week that the Pentagon violated the constitutional rights of two transgender women by denying them health coverage for gender-affirmation surgery. (Joshua Magbanua/U.S. Air Force)
The Pentagon violated the constitutional rights of two transgender women by denying them health insurance coverage for gender-affirmation surgery recommended by their doctors, according to a recent ruling by a federal court in Maine.
The plaintiffs, identified in their civil rights complaint as Jane Doe and Susan Roe, are children of two former service members insured by Tricare, the U.S. military’s health care program, according to court documents.
They challenged a 1976 federal law enforced by Tricare that mandates exclusion of all surgical treatments for gender transition for eligible spouses and children of service members.
It specifically bars coverage of any surgery that “improves physical appearance” without “significantly (restoring) functions,” including “sex gender changes.”
U.S. District Judge Nancy Torresen awarded summary judgment, ruling Nov. 1 that Pentagon enforcement of this guidance violated equal protection rights under the Fifth Amendment based on sex and transgender status.
She also found that the military had failed to identify “a single governmental interest to justify” the exclusion.
The judge directed the parties to confer and inform the court by Nov. 15 on next steps. If the Pentagon doesn’t drop the enforcement, Torresen could issue an injunction ordering it to do so.
The suit was filed in 2023 against the Defense Department, the Defense Health Agency, Tricare and Defense Secretary Lloyd Austin.
The plaintiffs were assigned male gender at birth and identify as female. Both were diagnosed with gender dysphoria, a condition that can cause significant distress or impairment when a person’s gender expression doesn’t match their gender identity, according to court documents.
Doe was 21 and a college student when the suit was filed last year, and Roe was 20, according to the complaint.
At the time, they received health benefits through Tricare as dependents of their fathers, each of whom served honorably for more than two decades in the U.S. military, court papers state.
Both Roe and Doe say their treatment is ongoing and they may need future surgeries. Doe’s symptoms included acute anxiety, racing thoughts, a rapid heartbeat and social isolation, according to court documents.
She was diagnosed with gender dysphoria at age 17. Court documents say Tricare did not dispute that diagnosis and covered the expenses of her counseling and hormone replacement therapy as medically necessary treatments.
In 2021, the insurer denied Doe authorization to consult with a surgeon for a procedure that doctors had recommended to treat her gender dysphoria, court documents state.
She paid for other interventions to address male facial and vocal features through alternative health insurance at her university at her own expense, according to court papers.
Roe needs medically recommended facial feminization surgeries to treat her gender dysphoria and will need additional gender transition surgery later, according to the complaint.
Tricare doesn’t cover gender-affirmation surgery for beneficiaries who aren’t active duty service members. DHA policy outlines the process for providing gender-affirming surgical care to service members diagnosed with gender dysphoria.
It includes requirements for endorsements from the patient’s transgender care team and their chain of command prior to authorization, according to the DHA.
Torresen disagreed with the Defense Department’s interpretation that gender-affirming surgery would be prohibited under a separate regulation that bars coverage of surgeries “performed primarily for psychological reasons.”
The plaintiffs agreed not to seek damages in their suit.
Congress continues to debate whether federal health programs like Tricare should cover gender-affirming care and related support services.
Under the prior administration of President-elect Donald Trump, active duty transgender members could continue to receive gender-affirming medical treatment if they received a gender dysphoria diagnosis before April 2019.
But those with a diagnosis after that date had to serve in their sex assigned at birth and could not receive gender-affirming care. President Joe Biden rescinded the policy upon taking office in January 2021.
