An advocacy group for transgender veterans filed a second lawsuit against the federal government over its exclusion of gender-affirming surgery from health benefits for veterans. 

The lawsuit is the latest update in a yearslong effort by the Transgender American Veterans Association, or TAVA, to push the Department of Veterans Affairs to cover gender-affirming surgery — coverage that the association says the VA has been promising to provide for years. 

In 2016, TAVA filed a petition asking the VA to start the rulemaking process to amend its health benefits for transgender veterans to include gender-affirming surgery.

The VA covers nearly all transition-related care for veterans, including hormone therapy, fertility preservation, hair removal, voice training and psychosocial support. Surgery, however, is the exception. If trans veterans want to receive genital or breast surgery, among other surgical procedures, they have to pay out of pocket or use private insurance. Such surgeries are covered for active duty service members. 

TAVA filed a lawsuit in January and asked the court to compel the VA to respond to its 2016 petition within a reasonable time. The VA responded Feb. 22 and denied TAVA’s petition. 

In his letter denying TAVA’s petition, Veterans Affairs Secretary Denis McDonough said the recently enacted PACT Act — a 2022 law that expands health care benefits for veterans exposed to burn pits, Agent Orange and other toxic substances — will necessitate that the VA produce and collect new information that might require the department to submit new data on a proposed rule to cover gender-affirming surgeries. 

“Because VA is not ready at this time to initiate a rulemaking addressing the specific regulatory changes proposed in the petition, VA hereby denies the petition for rulemaking,” McDonough wrote in his letter to the Transgender Law Center attorneys representing TAVA, which was shared with NBC News. 

TAVA filed a second lawsuit Monday in the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., to challenge the VA’s denial, arguing that the denial violates the Administrative Procedure Act and the equal protection component of the Fifth Amendment, “as it amounts to unconstitutional discrimination on the basis of sex and transgender status.” 

“VA’s rejection of TAVA’s petition for rulemaking after nearly eight years of letting the petition languish — and nearly three years of promises to provide the coverage it requested — demonstrates the agency’s failure to take seriously the needs of transgender veterans, the inadequacy of the care it currently provides, and the urgent need for reform,” TAVA’s lawsuit states.

The VA did not immediately return a request for comment. 

Josie Caballero, the acting president of TAVA, said her initial reaction to the VA’s rejection of TAVA’s petition for rulemaking was shock and then disappointment, because the VA has promised for years to cover gender-affirming care for trans veterans.

For example, in June 2021, McDonough announced that the department was “taking the first necessary steps to expand VA’s care to include gender confirmation surgery,” which he said would take time, CNN reported then. 

“But we are moving ahead, methodically, because we want this important change in policy to be implemented in a manner that has been thoroughly considered to ensure that the services made available to veterans meet VA’s rigorous standards of quality health care,” McDonough said at the time.

Caballero said gender-affirming surgery is medically necessary for many trans people, and, as a result, “denying access puts our lives at risk.” She said many of TAVA’s members are tired of the VA giving them the runaround. 

“We just want the VA to keep its promises — the promise of health care, the promise of being able to live with dignity and have our health care provided because we fought, we put our bodies on the line,” she said. “This is the least that this country can provide for us. And the VA should not be a barrier to providing lifesaving health care.”

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