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The exclusion of such coverage is unconstitutional, a federal judge in Maine ruled.
The Department of Defense’s health insurance plan, Tricare, must cover gender-affirming surgery for transgender dependents of active and retired service members, a federal judge has ruled.
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The exclusion of coverage for this care violates the equal protection guarantees of the U.S. Constitution, U.S. District Judge Nancy Torresen ruled November 1.
The suit was brought by two transgender women in their 20s, identified by the pseudonyms Jane Doe and Susan Roe, who are both daughters of retired military members and are covered by Tricare. Doe and her father filed suit in 2022 in U.S. District Court in Maine, and Roe was added to the suit last year. Doe lives in Maine and Roe in Florida. Both of the women’s fathers served more than two decades in the military.
Defense Secretary Lloyd Austin, the Defense Department, the department’s health agency, and Tricare were named as defendants.
The women challenged a 1976 federal law that excluded coverage for “surgeries ‘justified solely on psychiatric needs including, ... sex gender changes’ and other services deemed ‘not medically necessary,’” Torresen wrote in her ruling.
“Congress considered all ‘cosmetic’ procedures (including ‘sex gender changes’) to be ‘nonmedical’ in the sense that they were ‘psychologically’ or ‘psychiatrically’ justified, and not strictly medically necessary,” she continued. But Torresen found that such surgery is indeed medically necessary and that the Defense Department had not shown that any important governmental interest was advanced by denying the coverage.
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In 2016, the Obama administration lifted the ban on military service by trans people, and the Defense Department changed the Tricare rules so that nonsurgical treatments for gender dysphoria could be covered. But department officials said the plan couldn’t cover surgical treatments for dependents unless the 1976 law was changed. Surgical treatments were covered for active-duty service members, however.
While Torresen entered her judgment in favor of the women who sued, she set a deadline of November 15 for the parties in the case to meet and let her know if an injunction barring enforcement of the policy is needed. This means she is “waiting to see whether the government will change its interpretation of the statute and regulation to cure the constitutional problem,” law professor Arthur Leonard wrote in Gay City News.
Torresen was appointed by President Barack Obama, Leonard noted. If the Defense Department appeals her ruling, it would go to the U.S. Court of Appeals for the First Circuit, which is “the only federal circuit court with no Republican appointees among its active judges,” Leonard observed.
The plaintiffs are represented by Orrick, Herrington & Sutcliffe, the Columbia Center, and GLBTQ Legal Advocates and Defenders, also known as GLAD Law.
"We’re gratified the court recognized this is simply a matter of providing basic health care,” Ben Klein, senior director of litigation at GLAD Law, told The Advocate via email. “The dedicated individuals who serve in our nation’s military should be able to provide their family members with the essential care they need.”
