Transgender patients suing Aetna over surgeries face hurdle

Aetna Life Insurance Co. was hit with a class action filed by three transgender women denied gender-affirming facial surgeries.

The lawsuit claims that the facial reconstruction procedures are medically necessary and, therefore, Aetna discriminated on the basis of sex in violation of §1557 of the Affordable Care Act.

But even their lawyer acknowledges that the plaintiffs have a difficult road ahead in litigation.

Advocates for Trans Equality, Wardenski and Cohen Milstein Sellers & Toll are representing Binah Gordon, Kay Mayers and S.N., the named plaintiffs.

The named plaintiffs were male at birth, but have a female gender identity, the complaint said. Since the plaintiffs did not begin their gender transition until they were adults, they “developed masculine facial features and other typically male secondary sex characteristics caused by puberty,” the suit said.

The plaintiffs are also diagnosed with gender dysphoria, which is “a serious medical condition marked by clinically significant distress or impairment resulting from the incongruence between one’s gender identity and assigned sex,” the complaint said.

Sydney Duncan, senior counsel at ATE, said gender-affirming facial surgery is considered cosmetic and not medically necessary by Aetna. While other types of gender-affirming surgery are covered at Aetna, Duncan said that it has been an uphill battle to achieve the current options available.

“This is another episode sort of what trans people have to do to piecemeal their health care together within the system,” Duncan said. “Pretty much at every juncture we’ve been told that things aren’t medically necessary; they aren’t covered, they aren’t appropriate, and this is another instance of that.”

Facial reconstructive surgeries are covered in other situations, such as if a car wreck caused damage to an individuals face, but not to treat gender dysphoria, Duncan said.

The class action is only brought against Aetna, but Duncan said other insurance companies have similar policies regarding gender dysphoria and denying facial reconstruction surgeries.

“Our hope is that this teaches the industry something about trans people, and the importance of this group of surgeries and its relationship to how trans people are perceived in their communities, how they experience dysphoria through being perceived, and the harms that that can cause,” Duncan said.

In addition, Duncan said without coverage, gender-affirming facial surgeries are “extraordinarily expensive, and when these things aren’t covered or are excluded by health care coverage, that’s effectively a bar entirely for the community of trans people. There are very few people who can afford this.”

Shelly Bendit, senior manager in corporate communications, provided a statement on behalf of Aetna.

“Although we cannot comment on pending litigation, Aetna has a strong track record of supporting the LGBTQ+ community and is committed to meeting the health care needs of all our members,” Bendit said.

Duncan said when litigating a “component of trans existence,” there is always the hurdle of educating others, including the court, about what it’s like to be transgender and the communities’ needs.

“From there, I think we have a pretty good case,” Duncan said. “Because [the defendant is] providing these surgeries elsewhere, and they’re not providing it for trans people solely because they’re being sought in treatment of gender dysphoria, that’s categorical exclusion. That’s discriminatory. That’s in violation of §1557 of the Affordable Care Act, and we think that the case is strong.”

Read the complaint:

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