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As the department's insurance covers gender-affirming surgeries for service members but not dependents, the family claims it violates the Constitution's equal protection clause.
A transgender woman in Maine and her father have filed suit against the Department of Defense because military health insurance excludes gender-affirming surgical procedures for dependents covered by the government program.
The Military Health System does not cover surgical treatments for gender dysphoria for dependents of service members under a federal law dating back 46 years. Despite the fact that active duty service members can receive this essential treatment, dependents cannot, highlighting an unacceptable double standard, according to the lawsuit.
It was filed by Boston-based GLBTQ Advocates and Defenders, or GLAD, on Monday on behalf of the family. The lawsuit, filed Monday in U.S. District Court in Portland, names Secretary of Defense Lloyd Austin, the U.S. Department of Defense, and TRICARE Health Plans as plaintiffs. TRICARE administers the Military Health System for active duty, reserve, and retired personnel.
"Jane has been denied critical treatments recommended by her doctors solely because of a federal statute dating to 1976, 10 [U.S. Code, Section] 1079...that mandates the categorical exclusion of all surgical treatments for gender transition in the military's medical coverage for eligible dependents of servicemembers."
As the lawsuit states, "The Due Process Clause of the Fifth Amendment prohibits the federal government from denying the equal protection of the laws."
John Doe, the father in the lawsuit, is a retired military veteran of 23 years who receives health insurance through the military system. The daughter, Jane Doe, is 21 and a college student who remains on his health plan.
Doctors recommended Jane Doe begin treatment for gender dysphoria as a young adult. But while TRICARE covers hormone replacement therapy, essential surgical care isn't covered.
"I just want what others who have served their country want -- the ability to take care of my family," John Doe said in a statement. "My family has served right alongside me. My wife and I want our daughter to be healthy and happy like any parents would. My daughter shouldn't be denied the healthcare she needs just because she's transgender."
TRICARE categorizes top and bottom surgery in the same way insurance companies treat nose jobs. According to the lawsuit, this is based on an outdated understanding of gender dysphoria.
"Gender transition surgeries are not cosmetic procedures because they do not have the goal of enhancing beauty or appearance," the lawsuit reads. "Rather, healthcare experts and the positions of a wide range of authoritative professional health organizations recognize gender affirming surgeries as safe, effective and medically necessary treatments for a serious health condition."
The American Medical Association and the American Psychological Association recognize gender-affirming surgeries as safe, effective, and medically necessary treatments for gender dysphoria.
The lawsuit points out that the exclusion of these procedures is based on an outdated understanding of surgical interventions as part of a comprehensive treatment plan for transgender people.
"The exclusion of surgeries for 'sex gender change' in Section 1079, and the grouping of procedures for 'sex gender change' with such patently nonmedical procedures as 'face lifts,' are remnants of the decadesold fallacy and bias that gender affirming surgeries are cosmetic, for purposes of beautification, and frivolous," the complaint states.
It claims there is an unacceptable double standard because the TRICARE program covers gender-affirming surgeries for active duty service members.
"The Defendants provide health coverage for gender affirming surgeries for active duty military personnel. Defendants cannot now, and never could, assert any legitimate justification for the obsolete prohibition of the identical care for dependents," the complaint says.
The Advocate contacted a spokesperson for the Department of Defense, who declined to comment.
"We do not comment on any pending litigation and defer all questions to the DOJ, as they handle these cases," the spokesperson said.
A request for comment to the Department of Justice went unaddressed.
The Biden-Harris administration has been vocal in its support for LGBTQ+ communities, with the president and vice president committing to standing with them.
The Advocate has reached out to White House Press Secretary Karine Jean-Pierre to ask about the administration's position on the law and will update this story when she responds.
