Trans women tussle with Aetna over gender-affirming care at Second Circuit

A Connecticut judge ruled earlier this year Aetna’s policy of automatically denying coverage of facial feminization surgery for transgender patients was discriminatory.MANHATTAN (CN) — Health insurance giant Aetna asked the Second Circuit on Wednesday for permission to continue denying gender-affirming care in the form of facial feminization surgeries for transgender women.A group of trans women brought a class action in Connecticut federal court in 2024, claiming Aetna improperly categorized their facial feminization surgeries — structural bone modifications and readaptation of the overlying soft tissues as part of gender-affirming surgery — as excluded “cosmetic surgeries” and refused to cover the cost of the procedures.In March, U.S. District Judge Victor Bolden determined the insurer’s blanket refusal to pay for facial feminization surgery to treat transgender patients’ gender dysphoria was a violation of the Affordable Care Act’s prohibitions against discrimination based on sex in federally funded healthcare programs. In a preliminary injunction, the Barack Obama appointee ordered Aetna to conduct individualized medical reviews for the trans women.Appealing that ruling to the Second Circuit, Aetna — a subsidiary of CVS Health Corporation and the nation’s second-largest health insurance company — argues the ruling should be overturned because the plaintiffs’ claimed injuries are traceable to their employers’ plan choices, not to Aetna’s advisory guidelines.Aetna says it does cover a wide variety of treatments for gender dysphoria, but determined the relevant medical and scientific evidence has not shown that certain facial surgeries are effective and medically necessary as a treatment for the symptoms of gender dysphoria.Aetna attorney Charles McCloud argued the plaintiffs’ standing is undermined by bringing the class action against only Aetna, which administers the benefits that the employers decide, rather than suing their employers, which ultimately control the design of their health insurance plans and have final say over which treatments receive reimbursement.“If Aetna decided tomorrow to simply authorize treatments not covered by plaintiffs’ benefit plans, the absent employers would not be obligated to provide reimbursement,” the insurer wrote in an appeals brief. “As a result, neither this court nor the district court can remedy plaintiffs’ injuries by ordering Aetna to take steps that plaintiffs’ employers can simply thwart or override."U.S. Circuit Judge Matthew Schwartz, a Donald Trump appointee, asked McCloud whether Aetna would cover facial feminization surgery for “somebody who’s a biological woman and wants to look more feminine.”McCloud replied that regardless of gender identity, such a procedure would be considered cosmetic surgery, which could be covered “provided that they have a qualifying medical diagnosis.”Asked the same line of questions, the plaintiffs’ attorney Kelly Parry-Johnson said the insurer created an additional barrier to transgender care that is not in place for cisgender people seeking similar procedures.“What Aetna failed to mention is that it would at least, for the nontransgender woman, conduct an individualized medical necessity review, whereas a transgender woman has the door shut in her face,” she said.U.S. Circuit Judge Debra Ann Livingston pressed Parry-Johnson on that point. “Is the idea that if the treatment is for gender dysphoria, there can be no such thing as a categorical determination that a treatment is not medically necessary without raising a strong inference of discrimination?” the George W. Bush appointee asked.Parry-Johnson replied that it would raise a strong inference of discrimination. “I also want to note that the text of the exclusion here actually doesn’t rely on diagnosis,” she said. “It specifically relies on gender transition, which by definition is something that only transgender people do, and by definition is only care transgender people seek.”Parry-Johnson added the insurer’s exclusion of transgender-affirming facial feminization surgery at issue “creates a negative presumption against transgender people that that care is never medical,” while allowing for the opposite presumption for cisgender patients.Seeking to affirm the lower court’s finding of sex discrimination by Aetna, plaintiff Dr. Gennifer Herley says her healthcare providers have unanimously determined that facial surgery is medically necessary and will profoundly alleviate the mental and physical distress caused by her diagnosed gender dysphoria.Herley asserts on appeal that she will suffer irreparable harm as long as Aetna’s exclusion prevents her from receiving the care she needs.Schwartz and Livingston were joined on the panel by U.S. Circuit Judge Sarah Merriam, a Joe Biden appointee.The three-judge panel did not immediately rule from the bench Wednesday.Earlier this week, the Trump administration asked the Supreme Court for help ending most gender-affirming healthcare for transgender people in federal prisons, including hormone treatment, social accommodations and surgery.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads