U.S. Military’s Refusal to Cover Gender Transition Surgery Violates Constitution, Obama Judge Rules

The U.S. military’s health insurance plan is discriminatory and violates Equal Protection rights under the Fifth Amendment of the United States Constitution by failing to cover costly gender transition surgeries, an Obama-appointed federal judge ruled days ago. Two transgender women sued the Department of Defense (DOD), the U.S. Defense Health Agency, Secretary of Defense Lloyd J. Austin III and the agency’s Tricare Health Plan over a provision that bans surgical coverage of procedures that improve physical appearance without a significant restoration of functions, including “sex gender changes.” The biological males, who want to be female, claim in their lawsuit that denying coverage of medically necessary gender transition surgeries violates their Constitutional Equal Protection rights, a guarantee that requires the government “to treat alike all persons similarly situated.”

In court documents the plaintiffs are identified as Jane Doe and Susan Roe and they receive health insurance through Tricare as dependents of former servicemembers. The health plan covers more than 9.6 million active-duty servicemembers, retirees, and their families providing services at military hospitals and clinics around the world as well as a civilian network of providers. Tricare offers transgender patients services that include hormone therapy and psychological counseling for gender dysphoria, which is identified as “psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity.” However, it does not cover surgery for the treatment of gender dysphoria, the insurance plan’s website states, adding that active-duty service members may request a waiver for “medically necessary gender affirming surgery.”

The transgender plaintiffs in this case have both received at least one surgery to treat gender dysphoria and say they will need more surgeries in the future. One has been enrolled in Tricare since 2002 and the other since 2023 and both “were assigned male at birth and have female gender identities,” according to the recently issued ruling. Neither procedure was paid for by Tricare, but the men took legal action to get the military insurance to cover future surgeries by claiming its policy discriminates based on sex and transgender status. An Obama-appointed federal judge in Maine, Nancy Torresen, agreed, writing in her decision that the exclusion violates the Constitution’s Equal Protection clause because it “expressly excludes sex gender changes from Tricare coverage.” Furthermore, Judge Torresen writes that gender transition surgery is not “cosmetic,” but rather “medically necessary” because the goal is to effectively treat a serious medical condition not enhance beauty or appearance. “In other words, surgery treats gender dysphoria by addressing the incongruence between a transgender person’s anatomy and their immutable brain-based gender identity,” according to the judge.

The 28-page ruling provides detailed information about gender identity and dysphoria and cites standards of care issued by an international nonprofit, World Professional Association for Transgender Health (WPATH), considered to be an authority on the issue. The misalignment between gender identity and birth sex, known as “gender incongruence,” means a transgender person feels “wrongly embodied” due to their anatomy, the ruling explains, adding that it may be medically necessary for the health and wellbeing of some transgender people to take steps to live consistently with their gender identity. “If untreated, gender incongruence may lead to gender dysphoria, which can be a serious medical condition,” Torresen’s ruling states. The judge also writes that WPATH considers medically necessary treatment for people with gender dysphoria to range from hormone therapies to surgical procedures that include chest reconstruction, facial feminization, and genital reconstruction. Torresen points out that the same procedures also treat conditions other than gender dysphoria. “For example, mastectomies, hysterectomies, salpingo-oophorectomies, and orchiectomies can treat cancer, and genital reconstruction may be performed after removing a patient’s genitalia due to cancer, injury, or infection,” she writes.