A group of transgender soldiers is bringing legal action against the VA for not covering gender-affirmation therapies.
The Transgender American Veterans Association, or TAVA, filed a lawsuit in federal court on Monday, seeking to convince the VA to pay for the therapies. This is its second petition this month related to the issue.
“Every day of trans veterans being denied this treatment increases the stress and mental anguish that is plaguing our community, and lifesaving, doctor-prescribed, transition-related healthcare is very important to the life satisfaction of veterans in our community,” Josie Caballero, acting president of TAVA, told Military.com in a telephone interview Monday.
“We’re hoping that this petition provides more promise for trans soldiers to know that something’s going to move, something’s got to give,” Caballero added.
The VA’s years-long delay in paying for transgender soldiers’ clinics was the subject of a lawsuit that TAVA filed in January.
The earlier complaint sought to compel the VA to fully respond to a request that the department reimburse for the operations that TAVA first submitted in 2016. In February, the VA denied TAVA’s complaint, making the earlier petition debate.
The VA estimated in 2021 that about 4,000 trans soldiers may qualify for therapies. The VA could spend anywhere from $3.5 million to $78 million annually, depending on the number of people and the types of therapies they get, according to a 2016 VA research.
The VA denied that it was ready to perform the clinics because it has been studying how the PACT Act, which expanded soldiers’ eligibility for VA healthcare to thousands more, will affect their membership. Denis McDonough, the VA Secretary, did not, however, rule out providing the therapies once the PACT Act study is finished.
“While we’re considering this for further analysis, VA will continue to provide all other types of gender-affirming care to veterans,” McDonough said in February. “To all LGBTQ+ veterans and to all veterans, I just want to be 100% clear that VA is 100% committed to providing you world-class care and a safe, welcoming, and discrimination-free environment. Every VA staff and senior should have respect and dignity at the VA.”
In a rush of movements in the early weeks of the Biden administration to show support for LGBTQ+ Americans, McDonough announced in June 2021 that the department may include gender-affirmation surgeries. The VA predicted that federal regulations would be changed in 2021, but the proposed rule has been sitting on McDonough’s table always since. The news was meant to kick off a conventional rulemaking process.
Caballero claimed that TAVA needs to file a second legal challenge because McDonough’s denial of the petition and his decision to cover the surgeries one day were “contradictory.”
The lawsuit itself calls McDonough’s denial an “arbitrary and capricious” violation of the Administrative Procedure Act, as well as a violation of the Fifth Amendment’s guarantee of equal protection and due process rights. The federal rulemaking process is governed by the Administrative Procedure Act, which states that courts can invalidate actions taken by government agencies if they are arbitrary or capricious.
The lawsuit claims that the agency hasn’t taken seriously the needs of transgender veterans, the inadequacy of the care it currently provides, and the urgent need for reform. “VA’s rejected TAVA’s petition for rulemaking,” after nearly eight years of letting the petition languish.”
