Trans women sue Aetna over policy denying coverage for facial feminization surgery

Three transgender women are suing Aetna, alleging that the health insurance company has for years unlawfully denied their claims for facial feminization surgery.

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

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

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As them notes, Aetna’s policy on coverage 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 suit argues. “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 suit argues that because Aetna “generally makes an individualized medical necessity determination for coverage decisions” regarding similar procedures for cisgender patients, the company’s categorical denial of coverage for the same procedures as part of gender transition and treatment of gender dysphoria is discriminatory.

“By design, it treats transgender plan holders differently—and worse—than their cisgender counterparts,” according to the lawsuit.

According to A4TE’s press release, Gordon and S.N. were both forced to pay for their treatment out of pocket, with Gordon paying approximately $35,000 and S.N. paying nearly $50,000. Mayers, meanwhile, has been unable to afford facial surgery and continues to experience gender dysphoria and fear for her safety.

“With my job, I am on the road every week, spending a lot of time in places that are not as safe for trans people as the community where I am blessed to work,” Gordon said in a statement. “For years, I struggled with fear and anxiety around the danger my facial features put me in while traveling and finding lodging, and even leaving my home, which made me less effective at work and impacted my weekends and all 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 that I needed, it was like my life finally began. When I looked in the mirror, I used to see an obstacle, a laughingstock, a target, or a victim. Today in the mirror I see 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 lifesaving medical care that enables them to live full authentic lives and reduce distress 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 assume the major financial burden of paying out-of-pocket.” 

Joseph Wardenski, Principal of Wardenski P.C., noted that thousands of transgender women have been denied coverage for facial surgeries by Aetna. The company “has ignored the medical consensus and wrongly treated this critical health care as ‘cosmetic,’” Wardenski said. “Aetna’s refusal to recognize the medical necessity of this critical health care is causing unnecessary harm to many transgender women on Aetna health plans.” 

Tuesday’s press release noted that in 2021, A4TE — then known as Transgender Legal Defense and Education Fund — brought a similar lawsuit against Aetna 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.

This past May, Aetna settled another 2021 lawsuit brought by a same-sex couple who were denied coverage for intrauterine insemination (IUI), which at the time Aetna only covered for heterosexual couples. Under the terms of the settlement, the company agreed to modify its clinical policy to ensure eligible plan members will have equal access to fertility treatment regardless of sexual orientation.

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