More About the VA’s Rulemaking Process on Gender Confirmation Surgeries

Last month, VA Secretary Denis McDonough announced that the VA would begin the rulemaking process for allowing gender confirmation surgery for transgender Veterans. The news was met with jubilation and groups across the U.S. began spreading the word, some going so far as saying that the surgeries were now available. As welcome as the news is, to be clear, transgender Veterans are not yet able to go to the VA for gender confirming surgery because the process has not started to make changes to the VA’s policies and procedures. Below are points that the VA would like to make on removing the “gender alterations” exclusions from the VA’s medical benefits package.

Since about 2011, the VA has provided all medically necessary transition-related care for transgender and gender diverse Veterans except for surgeries; this is due to something called a “gender alterations” exclusion that was inserted into the VA’s medical benefits package. The VA interprets “gender alterations” exclusions as surgical interventions for gender transition.

(c) In addition to the care specifically excluded from the “medical benefits package” under paragraphs (a) and (b) of this section, the “medical benefits package” does not include the following:

(1) Abortions and abortion counseling.

(2) In vitro fertilization. Note: See § 17.380.

(3) Drugs, biologicals, and medical devices not approved by the Food and Drug Administration unless the treating medical facility is conducting formal clinical trials under an Investigational Device Exemption (IDE) or an Investigational New Drug (IND) application, or the drugs, biologicals, or medical devices are prescribed under a compassionate use exemption.

(4) Gender alterations.

(5) Hospital and outpatient care for a veteran who is either a patient or inmate in an institution of another government agency if that agency has a duty to give the care or services. This exclusion does not apply to veterans who are released from incarceration in a prison or jail into a temporary housing program (such as a community residential re-entry center or halfway house).

(6) Membership in spas and health clubs.

Title 38, Chapter I, Part 17, Enrollment Provisions & Medical Benefits Package

Presently, the VA does not currently provide gender-affirming surgeries; however, it recognizes that gender-affirming surgeries are evidence-based and proven effective at mitigating serious health conditions, including suicide, substance abuse, and dysphoria.

So, how did the VA come to the point of ordering a review of policy?

In 2016, the VA received a Petition for Rulemaking (PFR) to remove the “gender alterations” exclusion from the medical benefits package (38 CFR § 17.38). In fact, Veterans who petitioned the VA through the courts argued that this exclusion was/is discriminatory and that removing it would enable the Veterans Health Administration (VHA) to provide transgender Veterans with coordinated, medically necessary, transition-related surgical procedures.

As to what the review will consist of, the VA states that it will include an evaluation of statutory and regulatory requirements, as well as funding, staffing, technology, and other resources required to provide all medically necessary services.

Ultimately, revising the medical benefits package would enable a safe, coordinated continuum of care that is Veteran-centric and consistent with VA values of equity and respect for all Veterans. Of course, this review cannot take place until the VA Secretary formally grants the PFR; to date, this has not yet occurred.

Rulemaking to remove the “gender alterations” exclusion is recommended to align with current administration priorities, best medical practice, research, and professional health organizations. Additionally, updating the VA’s medical benefits package would ensure comprehensive coverage similar to the care provided by the Department of Defense (DoD) and most health insurers.

As it stands, the VA is not able to provide or pay for gender-affirming surgical procedures until the rulemaking process is completed and the final rule is published.

If you’re wondering how long the rulemaking process will take, the VA states that the whole process may take more than two years. This time will allow the VA to develop the capacity to meet the needs.

Finally, say the VA Secretary switches gears and decides not to grant the PFR. Simply put, nothing will change. In the absence of the rulemaking, the VA will continue to provide or pay for the services it currently offers, including corrective procedures after gender-affirming surgeries a transgender or gender diverse Veteran obtains outside the VA, hormone therapy, and other gender-affirming care.