The Trump administration has taken a firm stance in the ongoing debate over gender-affirming care, filing a 39-page amicus brief in support of Premera Blue Cross. The insurer is appealing a federal court ruling that found its restrictions on gender-affirming surgeries for minors discriminatory. This case, unfolding in the 9th U.S. Circuit Court of Appeals has significant implications for transgender health care access.
The Justice Department’s brief, submitted by the civil rights Division under Assistant Attorney General Harmeet Dhillon, argues that Premera’s policy does not discriminate based on sex but rather on diagnosis and age. The brief contends that while adults may choose cosmetic surgeries, these procedures are often not medically necessary and thus not covered by insurance.
The Legal Battle Over Gender-Affirming Care
The case originated last year when Premera declined to cover top surgery for two teenage patients. U.S. District Judge Thomas Zilly ruled that Premera’s policy violated the Affordable Care Act by discriminating on the basis of sex. The judge found that Premera covered comparable procedures for cisgender youth but not for trans and nonbinary minors.
Judge Zilly denied the plaintiffs’ age discrimination claims, stating they had not exhausted all administrative remedies, and declined to grant the lawsuit class-action status. However, he affirmed the ruling in August, despite the Supreme Court’s decision in United States v. Skrmetti which upheld a Tennessee ban on gender-affirming care for minors. Zilly noted that the Skrmetti decision did not control the case involving the Washington teenagers.
The Science Behind Gender-Affirming Surgery
The Justice Department’s brief cites a study published last year in The Journal of Sexual Medicine which concluded that gender-affirming surgery is beneficial in affirming gender identity but associated with increased mental health risks. However, the study did not establish a causal relationship. The Public Health Communications Collaborative noted that researchers compared separate groups of patients rather than measuring participants’ mental health before and after surgery.
Conversely, research led by the Harvard T.H. Chan School of Public Health has associated gender-affirming surgery with lower psychological distress and suicidal ideation among transgender and gender-diverse people who wanted such care. This conflicting evidence underscores the complexity of the issue and the need for further research.
The Broader Implications
Lambda Legal, which represented the plaintiffs, hailed Judge Zilly’s ruling as a victory for access to transgender health care. Omar Gonzalez-Pagan, Lambda Legal Counsel and Health Care Strategist, emphasized that federal and state anti-discrimination laws like Section 1557 of the ACA may establish civil rights that rise above those recognized by the Supreme Court under the Constitution.
The Justice Department, however, argues that the lower court erred in its interpretation. The department contends that the Skrmetti decision established that regulating medical procedures on the basis of diagnosis does not automatically amount to discrimination on the basis of sex. The brief asserts that the district court’s conclusion conflicts with binding authority from the Supreme Court and other circuit courts.
As this legal battle unfolds, it raises critical questions about the balance between medical necessity, insurance coverage, and the rights of transgender individuals. The outcome of this case could set a precedent for future disputes over gender-affirming care and health insurance policies.
