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Trans veterans sue VA over gender confirmation surgery

The Daily Beast

January 25, 2024

The VA said it would provide gender-affirming surgeries for trans veterans, but so far hasn’t. A new lawsuit aims to resolve the matter for those who urgently require treatment.

The VA (U.S. Department of Veteran Affairs) is facing a lawsuit over its delay in providing gender confirmation surgery for transgender veterans. The filing of the lawsuit Thursday by the Transgender American Veterans Association (TAVA) seeks to compel a response from the VA to a 2016 petition urging it to provide the surgery, which the organization currently excludes from the medical benefits package it provides to veterans.

The organization provides pre- and post-operative care to transgender veterans, but not confirmation surgeries.

Two and a half years ago, Denis McDonough, Secretary of State for Veteran Affairs, publicly announced that VA would provide gender confirmation surgery. “To date, however, VA has failed to act on the petition or to provide this essential care,” TAVA says, adding that the surgery “dramatically reduces the risks of suicidal ideation, depression, and psychological distress for transgender people who live with gender dysphoria.”

TAVA said it had had enough of the delay. The lawsuit, it said, was intended to make the VA follow through on what it had promised—and so far failed—to do. K.N. McCleary, of the Yale Veterans Legal Services Clinic, likened it to a Medevac helicopter being urgently required to attend to a critically injured soldier, and taking eight hours to do so.

Trans veteran Natalie Rose Kastner, a combat engineer in the Army from 2006 to 2008 who is now disabled, told The Daily Beast of attempting an at-home surgery herself, having sought in vain to access gender confirmation surgery from the VA and via her civilian health insurance.

On March 5, 2022, Kastner—feeling an overwhelming sense of gender dysphoria—took a paring knife and pair of scissors, went to her bathroom, and cut her right testicle off, without anesthesia or medical training.

“I cut a tendon and artery, and blood hit the wall. The thing that crossed my mind was, ‘Oh, I cut the artery,’” Kastner told The Daily Beast. “I cleaned my bathroom up, and went back to bed. My cat, Gigi, woke me up, and by doing so saved me. I reached down there, pulled back my hand, and there was blood all over it. I went back to the bathroom and saw the toilet paper I had used to clot the wound had not done that. I went down to my car to drive myself to the ER around the corner. The nearest VA hospital was over an hour away. If I’d driven there, I would have died somewhere along that road.”

“Everyone acknowledges the high suicide rates for trans veterans,” Kastner said. “I can’t help but think how many of those were not suicides. How many of those were just another transgender woman like myself, or a transgender male, who just wanted to fix their bodies? To be clear, I did not walk into that bathroom wanting to end my life. I have two beautiful children, and an ex-wife who at that time I was a caregiver for. I was not attempting suicide. I was attempting to fix my body.”

“The surgeries we are asking the VA to provide are life-saving surgeries,” Kastner said. “If I had been able to receive it, or have the hope of receiving one of those surgeries, I would not have done that. I can only imagine how many transgender veterans out there have gone to the same lengths as I have and not been so lucky.

TAVA’s president Rebekka Eshler told The Daily Beast that the White House had blamed the VA for the policy change not yet being enacted, while the VA had blamed the White House.

“It has become a political football that keeps being passed around,” Eshler said. “It’s just that they don’t want to extend the coverage, and trans veterans are paying for it with their lives. We have heard of trans veterans who have served their country trying to do the surgeries themselves, or go down that road where they want to end their lives. Lives are at stake here.”

A spokesperson for the VA told The Daily Beast that the VA did not comment on potential or pending litigation, but noted that when Secretary McDonough first announced the policy had said, “We are taking steps to expand VA’s care to include gender [affirmation] surgery, thus allowing transgender vets to go through the full gender [affirmation] process with VA by their side. There are several steps to take, which will take time. But we are moving ahead, methodically, because we want this important change in policy to be implemented in a manner that has been thoroughly considered to ensure that the services made available to veterans meet VA’s rigorous standards for quality health care.”

The VA spokesperson told The Daily Beast that providing confirmation surgery was “continuing through VA’s rulemaking process and is being considered carefully and thoroughly, with full understanding of its importance and urgency. While the rulemaking process on gender affirming surgery at VA is still underway, VA continues to provide all other types of gender affirming care to veterans—including hormones, gender affirming therapy, pre- and post-operative care, voice and communication coaching, prosthetic support, and psychosocial support groups. VA also provides pre-operative evaluations for surgical procedures and surgical revisions associated with post-surgery complications.”

The spokesperson said it was the VA’s mission “to provide transgender veterans—and all veterans—with the world-class care and benefits they deserve. We thank each and every one of these heroes for their service and sacrifice, and we will continue to work to serve them as well as they have served our nation.”

The spokesperson declined to respond to a follow-up question about why the VA provided pre- and post-operative care for trans veterans, but not support for the surgeries themselves. (Later Thursday, the Federal Circuit ordered VA to submit a brief responding to TAVA’s lawsuit within 14 days.)

Kastner told The Daily Beast, “The VA is my only option. The VA’s mission statement is that we serve those who have served. I am not the only transgender veteran. There are countless others who have not come out as trans to the VA because they are afraid of backlash. This is medically necessary surgery, life-saving surgery, and by not providing it, the VA is not keeping to its mission statement. How, if you are letting veterans die, are you serving those who have served?

Eshler said there are an estimated 160,000 trans veterans in the U.S., 10,000-15,000 of which use VA services, around a third of whom wish to access surgical care. “If the VA are so keen to build a membership, why are they doing something like this which undermines trust in them as an organization?” Eshler said.

Eshler said that funding the surgeries was not the sticking point, as the cost of providing surgical care was relatively paltry. “It’s less than the VA spends on providing Viagra,” Eshler said. “I think it is more of a political question, and perhaps the VA or White House being worried about the headlines, which is sad as we are people, veterans, who served our country.”

Kastner, who lives in Texas and whose only income is her compensation from the army, had attempted to access the surgical care via her civilian health insurance, but was told by a surgeon they could not accept Medicare because “we cannot negotiate prices with them.”

She added, “Texas has also deemed gender confirmation surgery as elective surgery. For healthcare to cover it, it needs to be deemed medically necessary surgery—and unfortunately Texas does not see this surgery as medically necessary. That leaves me with the options of leaving the state and have the surgery in another state which does deem it medically necessary, or to save up the money for the surgery. But I am a disabled veteran on a fixed income, so I simply cannot afford either.”

She also does not want to leave her state, community, and family. The VA’s delay has forced her to choose between medical treatment, her community and family, she said. “Every day I grapple with feelings of despair,” Kastner said. She occasionally regrets not removing her second testicle, even though she knows it may have killed her.

Today, Kastner said, she is “not fully transitioned. I am on hormones. The VA provides before care, and it provides after care, but the fact that the VA will not provide surgeries is a break in the link of chain of care, and it is the most important part. Not having it leaves me in a limbo.”

“I look in the mirror and I am not who I am on the inside. All I want to do is make my insides and outsides match. It’s always there. There are transgender women out there, transgender veterans, who look in the mirror and see a man, because unfortunately there are some of us who do not pass—who look in the mirror and see we don’t pass, and it’s a blow to our confidence, and blow to who we are.”

“The VA is my only option at this point,” Kastner told The Daily Beast. “If they don’t provide the surgery for me, I obviously can’t say what the future is for me. All I can do is keep fighting for other veterans and try and get this. But I have really lost hope. If this fails there’s no light in the shadow.”

“For those of us who have been in the military, there’s nothing but the uniform. We are a family of brothers and sisters in arms. We have all served our country. We are all a family and we treat each other as such. I miss the army, I loved my time in service. I miss the camaraderie, I miss my brothers and sisters. And there are brothers and sisters of mine out there who are dying, who are struggling with this. I myself was not a combat veteran, and this has broken me, and so I cannot imagine what a combat veteran facing this is feeling. I’m afraid for myself. I’m afraid for other veterans. I’m afraid for my brothers and sisters. We are also facing extreme anti-transgender legislation across the country. And it’s horrifying to watch.”

While TAVA hopes the lawsuit acts as a spur for the VA to enact the policy change, Eshler also eyed the possibility of a second Trump administration with caution and alarm. In his first term, Trump banned trans troops from serving—a move later reversed by the Biden administration.

“It is scary,” Eshler said. “I will say Donald Trump was pretty good with veterans, and so I would hope he would be up for meeting and talking with us, and hearing us out. But generally, it worries me that a second Trump administration would mean four years of being in hiding. Honestly, I don’t think a lot of people would survive it.”

TAVA will wait to see how the VA responds to its filing, and—depending on that response—a court may schedule arguments in the case.

In the meantime, TAVA says trans veterans like Kastner relying on the VA for their ongoing care remain perilously ill-served.

“Every day that goes by a trans veteran suffers,” said Navy veteran Josie Caballero,. the Director of the U.S. Transgender Survey & Special Projects for the National Center for Transgender Equality, who worked as a nuclear reactor operator on the USS Ronald Reagan. “This is not a political issue, it’s a veterans’ issue.” By bringing the lawsuit, Caballero said, “we are doing our duty as transgender leaders and veterans to make sure something happens.”

“I really don’t know what the future holds,” Kastner told The Daily Beast. “As Doc Brown says in Back to the Future, the future is yet to be written. I hope we are all able to have a beautiful future—one of light and happiness and equality. Whether that happens remains to be seen.”