Fulcher v. Secretary of Veterans’ Affairs

Lambda Legal filed an appeal in Fulcher v. Secretary of Veterans’ Affairs, challenging the U.S. Department of Veterans Affairs’ refusal to engage in rulemaking to reconsider its ban on providing transition-related surgery to transgender veterans.

Congress passed the Veterans Health Care Eligibility Reform Act in 1996 to ensure that the medical needs of all American veterans would be met under the VA health care system. The VA later adopted this discriminatory rule that singles out transgender veterans and excludes coverage for medically necessary surgery to treat gender dysphoria, even when substantially similar surgeries are covered for non-transgender veterans. The VA recognizes the importance of treating gender dysphoria as a medical condition by covering hormone therapy, but irrationally denies surgical care, even though the same surgeries are covered for non-transgender veterans. The VA’s rule is so inconsistent that it can have no purpose other than to discriminate against transgender veterans.

Dee Fulcher is a transgender woman veteran of the U. S. Marine Corps who lives in Slidell, Louisiana. She is the parent of four children and the grandmother of twins. Dee served in the Marine Corps for eleven years where she specialized in hydraulic systems for helicopters. Dee achieved the rank of Platoon Sergeant and received several awards before being honorably discharged in 1992. Dee was diagnosed with gender dysphoria and began hormone therapy in December 2013. While Dee’s physician recommends reassignment surgery, she was informed by her doctor that no transition-related procedures would be covered by the VA.

Gio Silva is an Army veteran who lives in Denver, Colorado. He served in the Army from April 2008 to September 2012, when he medically retired. In July 2015, Gio’s physician recommended a mastectomy to treat his severe back pain, but in September 2015, while seeing a different doctor, Gio was told that the VA would not cover the common procedure because he is transgender. Gio suffers from physical and emotional pain because he was denied the surgery he needs.

Lambda Legal and Transgender Law Center filed a petition that sought to amend or repeal the rules that exclude medically necessary surgery for transgender veterans from the coverage provided to veterans through the VA. Lambda Legal and Transgender Law Center argue that the regulation is arbitrary and capricious and violates the Equal Protection clause of the Fifth Amendment by discriminating against transgender veterans on the basis of their sex and their transgender status.

In May 2018, Lambda Legal participated in oral argument in the Federal Circuit Court of Appeals to support our litigation challenging the VA’s inaction in response to our petition for rulemaking with regard to a discriminatory regulation that categorically excludes care for “gender alterations” in the VA medical benefits package. In response to the oral argument, the VA announced that it would be seeking comment on our petition for rulemaking to remove a categorical exclusion to assist the VA in determining whether to amend the medical benefits package and eliminate the exclusion of gender alteration from VA’s medical benefits package. On July 27, 2018, we voluntarily dismissed the case because the VA announced it was moving forward to consider rulemaking.  In September, 2018, Lambda Legal and Transgender Law Center submitted formal comments.