Federal Judge Rules Aetna's Blanket Denial Of Facial Surgery For Trans Women Is Sex Discrimination
The landmark ruling could lead to broader FFS coverage in the future.
On Sunday, a federal judge ruled that Aetna's categorical denial of facial feminization surgery for transgender women constitutes sex discrimination under the Affordable Care Act. The landmark ruling, handed down in the U.S. District Court for the District of Connecticut, is believed to be the first federal court order requiring a major private insurer to make individualized coverage determinations for gender-affirming facial surgery rather than automatically rejecting every claim as "cosmetic." The case was brought by six transgender women who sought coverage for facial feminization surgery to treat severe gender dysphoria but were denied under Aetna's Clinical Policy Bulletin 0615, which categorically excludes all gender-affirming facial procedures from coverage. Though the preliminary injunction applies to only two of the six plaintiffs, the class action is pending, and the court's legal reasoning will serve as a powerful precedent for transgender women denied facial surgery coverage nationwide.
“To be clear, the issue is not whether Aetna’s policy exclusion prohibits this type of gender-affirming care, but rather that Aetna’s policy exclusion prohibits only transgender individuals, the only individuals who can experience gender dysphoria, from receiving this type of gender-affirming care. Thus, when Aetna decided that facial gender-affirming procedures “performed as a component of a gender transition [were] not medically necessary and cosmetic,” Aetna prohibited only transgender individuals from seeking this medical care, and thus discriminated on the basis of sex,” wrote Judge Bolden in his ruling.
The ruling was made on behalf of two patients, Dr. Jamie Homnick and Dr. Gennifer Herley, both transgender women seeking gender-affirming facial surgery. Both reported severe depression, suicidality, and intensifying gender dysphoria related to facial masculinization—the result of not having access to puberty blockers or hormone therapy early in life. Both were denied categorically under CPB 0615, which does not evaluate requests for gender-affirming facial surgery on the basis of medical necessity but instead denies them altogether, regardless of a patient's individual medical circumstances or whether their treating physicians have deemed the procedures medically necessary.
The court leaned on the Supreme Court's decision in Bostock v. Clayton County and Title IX, as incorporated into Section 1557 of the Affordable Care Act, to find that Aetna's exclusion constitutes sex discrimination. The court reasoned that to deny a facial surgery claim under CPB 0615, Aetna must first determine whether the patient is transgender—which necessarily requires considering their sex assigned at birth. If a person assigned male at birth seeks facial reconstruction to treat a congenital condition or traumatic injury, Aetna evaluates the claim for medical necessity. If that same person seeks the same procedures to treat gender dysphoria, Aetna denies it automatically. Change the reason for the surgery—which is inextricable from the patient's sex assigned at birth—and the coverage determination changes. That, the court held, is textbook sex discrimination. Notably, the court also addressed the Supreme Court's ruling in United States v. Skrmetti, which upheld state bans on gender-affirming care for minors under the Equal Protection Clause, finding that it did not disturb Bostock's application to insurance discrimination claims under the ACA.
Gender-affirming facial surgery can be a critical part of a transgender person's care. A UCLA study published in the Annals of Surgery found that transgender patients who received facial feminization surgery reported significantly better outcomes across several measures of psychosocial health, including reduced anxiety, depression, and social isolation. The World Professional Association for Transgender Health recognizes FFS as medically necessary for many transgender women. Some states, including Colorado, Washington, and Oregon, explicitly prohibit insurers from categorically excluding facial feminization surgery and require that claims be evaluated on a case-by-case basis for medical necessity. Most states, however, leave it up to individual insurers—and many, like Aetna, have maintained blanket exclusions. This ruling may change that calculus, giving transgender women denied coverage a legal framework to challenge categorical exclusions nationwide.
Though the ruling applies to only two patients for now, the plaintiffs are seeking class certification, which could broadly impact every transgender woman on an Aetna plan who has been denied coverage for facial surgery. The same legal team—Advocates for Trans Equality and Cohen Milstein—successfully challenged Aetna's categorical exclusion of breast augmentation for transgender women in 2021, resulting in a settlement that changed the insurer's general policy. If this case follows the same trajectory, it could force Aetna to add facial feminization surgery to its list of potentially covered gender-affirming procedures. More broadly, the court's holding that categorical exclusions of gender-affirming facial surgery constitute sex discrimination under the Affordable Care Act gives transgender women across the country a legal framework to challenge similar denials from other insurers.
You can see the full decision here:
It’s nice to get a win once in a while…..
Thank you.
It is obviously true and wonderful to hear . . . how fast will it be overturned?
"but rather that Aetna’s policy exclusion prohibits only transgender individuals, the only individuals who can experience gender dysphoria"
I have to take issue with that phraseology. A transgender person may be the category of who experience gender dysphoria as a circumstance of birth, but as has been noted recently a cisgender boy who incidentally develops breasts unexpectedly is generally less than enthusiastic about the matter.