A new lawsuit says the VA has failed to live up to its promises about gender-affirming care

The Transgender American Veterans Association is suing the U.S. Department of Veterans Affairs, two years after the department said it would provide gender affirmation surgery.

By Desiree D'Iorio, American Homefront ProjectJanuary 29, 2024 11:37 am

From the American Homefront Project:

Natalie Kastner has wanted gender affirming surgery since she was 16 years old.

“I fell into the trap where I thought like a lot of people do, that this is a phase,” the former Army engineer said about the gender dysphoria that’s plagued her for years. “I fell into that trap, and boy, did that hit me after I left the Army.”

Now a disabled veteran living in Texas, Kastner said the Department of Veterans Affairs won’t perform the operation, and she would have to leave the state to get it privately. Two years ago, she said she severed an artery when she attempted to cut off her genitals in her own bathroom.

“I wanted to fix myself,” Kastner said. “It wasn’t about suicide or anything like that. It was, ‘I wanted to fix myself.’ And I knew the VA would not pay for that.”

The VA doesn’t provide or pay for gender affirming surgery for transgender veterans, even though many of the same operations — like hysterectomies and plastic surgery reconstructions — are provided for other health reasons. Secretary Denis McDonough announced in 2021 the VA would change that rule, but transgender veterans are still waiting.

Now, The Transgender American Veterans Association (TAVA) is suing over the VA’s unfulfilled promise to provide and pay for gender affirming surgeries.

“What the VA’s delay has done is consigned these veterans to essentially a lifetime of suffering with gender dysphoria after it promised to take care of them,” said Alex Johnson of Yale Law School’s Veterans Legal Services Clinic, which represents TAVA.

Johnson said the VA’s failure to act is illegal and dangerous to the health of transgender veterans. She said even veterans who can afford to bypass the VA and pay for surgery privately end up stuck.

Former Army engineer Natalie Kastner says she has wanted gender affirming surgery since she was 16 years old. She says the Department of Veterans Affairs is endangering people’s lives by not enacting a policy that allows the VA to provide and pay for the procedure.
Courtesy Natalie Kastner

“Some VA doctors have even been reticent to provide these referral letters because they’re scared it will run afoul of this categorical exclusion,” Johnson said.

As late as this past summer, Secretary McDonough took ownership for the delay — and acknowledged the political firestorm around the issue of trans rights.

“The bottom line is that when I make the decision, it’ll be my job to defend it and so I want to make sure I’m best positioned to do that.”

At a news conference announcing the lawsuit, activists said the reason for the delay doesn’t matter.

“Regardless of their excuses or reasons they have internally doesn’t disregard the fact that we have been misled [and] misinformed,” said Josie Caballero, vice president of TAVA. “They can give us all the excuses in the world, but we know they are in violation.”

A VA spokesperson said the agency is still working on the change and declined to comment on the lawsuit.

Transgender veterans are able to access other kinds of gender affirming care through the VA like hormone therapy and mental health support.

For Caballero, that’s just not enough.

“We are in crisis,” she said. “Every day that goes by, another trans veteran suffers. We cannot take empty promises or excuses any longer. This isn’t a political issue. This is a veteran issue.”

The VA estimates that more than 130,000 veterans are transgender. Not all of them want gender affirming surgery, but for the ones who do — and can’t get it — Kastner said she’s worried they’re at risk of losing their lives.

“They say that our suicide rate is high,” Kastner said. “I can only imagine how many of those suicides weren’t suicides. How many of those suicides were actually accidental because those veterans took it in their own hands like I did to fix themselves.”

While the lawsuit moves through the federal court system, Kastner said she’ll have to keep doing what she’s been doing: wait.

This story was produced by the American Homefront Project, a public media collaboration that reports on American military life and veterans.