A class-action complaint claims Aetna violated federal non-discrimination law by denying coverage of certain gender-affirming surgeries.
Why it matters: The lawsuit filed Tuesday cites civil rights protections in the Affordable Care Act that are currently being challenged by conservative-led states.
Driving the news: The lawsuit states Aetna “categorically excludes” coverage for facial reconstruction surgeries when they’re prescribed to treat gender dysphoria, even though it covers the same surgeries for other medical diagnoses.
- Two of the lead plaintiffs in the lawsuit ended up paying more than $35,000 out of pocket after Aetna denied their claims for surgery, while a third has not yet been able to afford a procedure.
- The complaint estimates this issue affects more than 70,000 people covered by Aetna across the country.
- The American Medical Association and other major medical groups support gender-affirming treatment standards that recognize facial reconstruction surgeries as safe and effective for changing facial features linked to gender dysphoria. The procedures are typically used to make facial features more feminine.
- Gender-affirming care varies by patient, and not all transgender people choose to get facial reconstruction surgery.
Between the lines: These surgeries are usually reserved for adults and haven’t been heavily targeted by recent state bans on transgender care. But systemic barriers still make them hard to access, said Gabriel Arkles, a lawyer for the plaintiffs and co-interim legal director at Advocates for Trans Equality.
What they’re saying: “Facial surgery is important healthcare. It’s also something that helps people be a little bit safer … Your face is so visible. It’s one of the first ways people will try to identify what gender you are.”
“I’m hoping and I’m praying for this lawsuit to make it possible for people to envision asking for their needs to be met because even that wasn’t possible for me at a certain point,” said Binah Gordon, one of the three lead plaintiffs on the complaint.
The lawsuit alleges that the insurance giant has covered similar procedures for cisgender patients.
Three transgender women have filed a lawsuit against U.S. health insurance company Aetna, alleging that their claims for gender-affirming facial surgeries have for years been unlawfully denied.
The three women, including Binah Gordon and anonymous plaintiff S.N. — filed suit in Connecticut on September 10, each asserting that Aetna improperly denied their claims for “medically necessary gender-affirming facial reconstruction surgeries.” The plaintiffs are represented by the law firms of Wardenski PC and Cohen Milstein Sellers & Toll PLLC, as well as Advocates for Trans Equality (A4TE), which was formed in a merger between two national trans rights organizations earlier this year.
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This is only the latest lawsuit leveling discrimination claims against the insurance giant. In 2021, Aetna settled a similar lawsuit (also filed in part by Cohen Milstein) by announcing it would consider trans women’s breast augmentation surgeries to be medically necessary — a reform that clearly was not equally applied to facial surgeries in the aftermath of that settlement. Since then, however, lawsuits against Aetna have surged on multiple other fronts. In the space of one week in October 2023, Aetna was served with 21 separate lawsuits from breast cancer survivors who said the company refused to pay for their reconstructive surgeries. Earlier this year, Bridges Health Partners in Pennsylvania sued Aetna for breach of contract; in May, the company agreed to settle another lawsuit that alleged the company had discriminated against LGBTQ+ families seeking fertility treatments, creating a $2 million reimbursement fund for the impacted parties.
Three transgender women sued Aetna Life Insurance Co. Tuesday for allegedly denying them coverage for medically necessary gender-affirming facial reconstruction surgeries.
Aetna’s categorical exclusion on the treatments constitutes discrimination on the basis of sex in a federally funded health-care program in violation of Section 1557 of the Affordable Care Act, a proposed class action complaint filed in the US District Court for the District of Connecticut said. Aetna generally provides payment for facial reconstruction surgery for diagnoses other than gender dysphoria, and also covers other gender-affirming care, such as chest reconstruction, the plaintiffs said.
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Medical professional groups have deemed facial reconstruction surgeries medically necessary for trans people and distinguished them from cosmetic procedures because they’re meant “solely to align a person’s facial characteristics with their gender identity, and not to ‘improve’ appearance,” the plaintiffs said. The surgery is “an essential component of their gender transition,” they said.
Aetna’s policy is facially discriminatory because it treats transgender people differently from cisgender people, for whom it covers facial reconstruction surgery to treat other medical conditions, the plaintiffs said.
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Wardenski PC, Transgender Legal Defense & Education Fund Inc., and Cohen Milstein Sellers & Toll PLLC represent the plaintiffs.
New York, NY –Today, Transgender Legal Defense and Education Fund (TLDEF), now known as Advocates for Trans Equality (A4TE), Wardenski P.C., and Cohen Milstein Sellers & Toll PLLC, filed a federal class action civil rights lawsuit against Aetna Life Insurance Company (Aetna) in the United States District Court for the District of Connecticut on behalf of three transgender women, including Binah Gordon and S.N. —denied coverage for medically necessary gender-affirming facial reconstruction procedures.
“With my job, I am on the road every week, spending a lot of time in places that are not as safe for trans people as the community where I am blessed to work. For years, I struggled with fear and anxiety around the danger my facial features put me in while traveling and finding lodging, and even leaving my home, which made me less effective at work and impacted my weekends and all my relationships. My doctors knew I was desperate to improve my quality of life,” said Binah Gordon, who is a plaintiff in the case. “When I was finally able to get the gender-affirming surgeries that I needed, it was like my life finally began. When I looked in the mirror, I used to see an obstacle, a laughingstock, a target, or a victim. Today in the mirror I see a capable, socially and spiritually connected, empowered and confident professional, partner, sister and aunt.”
“For transgender women, gender-affirming facial surgeries are not about vanity or appearance – they are about providing lifesaving medical care that enable them to live full authentic lives and reduce distress caused by gender dysphoria,” said Gabriel Arkles, Co-Interim Legal Director at Advocates for Trans Equality (A4TE). “Aetna’s refusal to cover gender-affirming healthcare, despite the medical necessity, forces many trans women to continue to suffer, and a minority to assume the major financial burden of paying out-of-pocket.”
Each of the plaintiffs have been deeply impacted by Aetna’s policy:
- Binah Gordon, a 42-year-old resident of Nebraska, was forced to cover the cost of her facial surgery herself, spending approximately $35,000 after Aetna refused to cover the surgery, causing her to experience a long, painful delay in obtaining this medically necessary care.
- S.N., a 48-year-old from Pennsylvania, paid nearly $50,000 out of pocket for gender affirming facial and voice surgeries. Her appeals to Aetna were denied, forcing her to bear the financial burden for gender-affirming healthcare that her medical providers had deemed medically necessary.
Gender-affirming facial surgeries are essential components of the medical treatment for gender dysphoria, a serious medical condition that arises from the incongruence between a person’s gender identity and their physical sex characteristics. Despite covering similar reconstructive surgeries for cisgender patients, Aetna categorically excludes these procedures for transgender people, classifying them as cosmetic, thus violating the Affordable Care Act.
“All of our clients, and thousands of others like them, were denied insurance coverage by Aetna for gender-affirming facial surgeries that their treating providers determined were medically necessary to treat their gender dysphoria and improve their overall well-being,” said Joseph Wardenski, Principal of Wardenski P.C. “Aetna has ignored the medical consensus and wrongly treated this critical health care as ‘’cosmetic.’ Aetna’s refusal to recognize the medical necessity of this critical health care is causing unnecessary harm to many transgender women on Aetna health plans.”
In 2021, Transgender Legal Defense and Education Fund (TLDEF), now known as A4TE, and Cohen Milstein worked on behalf of four women denied coverage by Aetna for medically necessary breast augmentation. The insurance company eventually updated their policy and expanded their coverage to include the procedure.
“We are disappointed that Aetna retains this outdated exclusion and are filing this lawsuit as a crucial step towards ensuring that the tens of thousands of transgender people who rely on Aetna receive the care they need without facing additional barriers solely because they are trans,” said Harini Srinivasan, Cohen Milstein Sellers & Toll PLLC Associate. “This lawsuit is a crucial step toward ensuring that the tens of thousands of transgender people who are customers of Aetna receive the care they need without facing additional barriers based solely on their gender identity.”
A4TE filed the complaint today against Aetna for violating Section 1557 of the Affordable Care Act, which prohibits discrimination based on sex in federally funded healthcare programs. The lawsuit seeks a declaratory judgment, injunctive relief to end Aetna’s exclusionary policy, and compensatory damages for all policyholders who have had to pay out of pocket for gender-affirming facial surgery because of Aetna’s discriminatory exclusion.
To learn more about the lawsuit or to sign up to potentially participate in the class action lawsuit, click through to Gordon, et al. v. Aetna Life Insurance (D.Conn.).
Plaintiffs in Gordon, et al. v. Aetna are represented by Gabriel Arkles, Ezra Cukor, Sydney Duncan, and Fiadh McKenna of Advocates for Trans Equality; Joseph Wardenski and Alexandra Vance of Wardenski PC; and Christine E. Webber, Harini Srinivasan, and Aniko R. Schwarcz of Cohen Milstein Sellers & Toll PLLC.
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Advocates for Trans Equality (A4TE) is an organization that fights for the legal and political rights of transgender people in the United States. Introduced in July 2024 after the Transgender Legal Defense & Education Fund and National Center for Trans Equality merged, A4TE is the largest trans-led advocacy organization in the U.S. and brings together experts, advocates, and communities to shift government and society toward an equitable future where trans people live joyful lives without barriers.
Wardenski P.C. is a civil rights law firm based in New York. The firm represents plaintiffs in civil rights lawsuits around the country challenging discrimination in education, housing, and health care, with a particular focus on the rights of the LGBTQ+ community.
Cohen Milstein Sellers & Toll PLLC, a premier U.S. plaintiffs’ law firm, with over 100 attorneys across eight offices, champions the causes of real people—workers, consumers, small business owners, investors, and whistleblowers—working to deliver corporate reforms and fair markets for the common good. We have litigated landmark civil rights and employment disputes before the highest courts in the nation and continue to actively shape civil rights and employment law in the United States.