Trans women sue Aetna over policy that denies coverage for facial feminization surgery

Three transgender people are suing Aetna, claiming the health insurer has been wrongfully denying their claims for facial feminization surgeries for years.

According to a press release from Advocates for Trans Equality (A4TE), the organization (formerly Transgender Legal Defense and Education Fund) has filed a federal class action lawsuit along with Wardenski PC and Cohen Milstein Sellers & Toll PLLC on behalf of Binah Gordon, Kay Mayers, and a third anonymous plaintiff identified as SN, as well as “all similarly situated individuals.”

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The lawsuit alleges that Aetna denied the three women “health insurance coverage for medically necessary gender-affirming facial reconstruction surgeries and procedures… under Aetna’s categorical exclusion from coverage for such treatments” in violation of Section 1557 of the Affordable Care Act, which prohibits “discrimination on the basis of sex in federally funded health care programs and activities.”

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If them Notes: Aetna’s coverage policy for gender affirming surgeries can be found on its website. Its Clinical Policy Bulletin on Gender Affirming Surgery lists 10 “Facial Gender Affirming Procedures” as “not medically necessary and cosmetic.”

“For Plaintiffs and others like them, (gender-affirming facial reconstruction surgery) is an essential component of their gender transition and medical treatments for gender dysphoria,” the lawsuit alleges. “Plaintiffs’ medical providers recommended GAFR to treat their gender dysphoria and related distress — and, as a result, to improve their overall life functioning and well-being.”

The lawsuit argues that because Aetna “generally makes an individualized medical necessity determination for coverage decisions” regarding similar procedures for cisgender patients, the company’s categorical refusal to provide coverage for the same procedures as part of gender reassignment and treatment for gender dysphoria is discriminatory.

“It is intended to treat transgender plan holders differently — and worse — than their cisgender counterparts,” the lawsuit says.

According to A4TE’s press release, Gordon and SN both had to pay for their treatments out of pocket, with Gordon paying approximately $35,000 and SN nearly $50,000. Mayers, meanwhile, cannot afford facial surgery and continues to suffer from gender dysphoria and fears for her safety.

“My work takes me on the road every week and I spend a lot of time in places that are not as safe for transgender people as the community where I am fortunate enough to work,” Gordon said in a statement. “For years, I struggled with fear and anxiety about the danger my facial features put me in when traveling, finding housing, and even leaving my home, which affected my effectiveness at work, my weekends, and all of my relationships.”

“My doctors knew I was desperate to improve my quality of life,” she continued. “When I was finally able to get the gender-affirming surgeries I needed, it was like my life had finally begun. When I looked in the mirror, I saw an obstacle, a laughing stock, a target or a victim. Today, I see in the mirror a capable, socially and spiritually connected, empowered and confident professional, partner, sister and aunt.”

Gabriel Arkles, co-interim legal director at A4TE, disputed Aetna’s position that facial feminization surgeries are “cosmetic.”

“For transgender women, gender-affirming facial surgeries are not about vanity or appearance,” Arkles said. “They are about providing life-saving medical care that allows them to live fully authentic lives and reduce the stress caused by gender dysphoria.”

Aetna’s refusal to cover such surgeries, Arkles added, “forces many trans women to continue to suffer, and a minority to take on the great financial burden of paying out of pocket.”

Joseph Wardenski, president of Wardenski PC, noted that thousands of transgender women have been denied coverage for facial surgeries through Aetna. The company “ignores medical consensus and falsely treats this vital health care as ‘cosmetic,'” Wardenski said. “Aetna’s refusal to acknowledge the medical necessity of this vital health care is causing unnecessary harm to many transgender women with Aetna health plans.”

Tuesday’s press release noted that A4TE — then known as the Transgender Legal Defense and Education Fund — filed a similar lawsuit against Aetna in 2021 on behalf of four transgender women who were denied coverage for medically necessary breast augmentation surgeries. The company settled and updated its policies to cover such procedures for trans women.

Last May, Aetna settled another 2021 lawsuit brought by a gay couple who were denied coverage for intrauterine insemination (IUI), which Aetna at the time only covered for heterosexual couples. Under the terms of the settlement, the company agreed to amend its clinical practices to ensure that eligible plan members have equal access to fertility treatments regardless of their sexual orientation.

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