January 26, 2021

Aetna Inc. said Tuesday that it would cover breast augmentation surgery for transfeminine policyholders, a move that comes after plaintiffs firm Cohen Milstein Sellers & Toll PLLC and the Transgender Legal Defense & Education Fund raised the issue with the health insurance giant.

Aetna said the policy change stemmed from a collaboration among Cohen Milstein, the Transgender fund and four of their clients, who approached the insurance company about coverage exclusions for transgender policyholders.

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Nancy Menusan, a transgender woman who was denied health insurance coverage for breast augmentation as part of a gender-affirming treatment, said she hoped other insurance companies would "take note" of Aetna's policy change.

"My hope is that being part of this groundbreaking collaboration helps other transgender and nonbinary people have access to the health care we deserve," she said in a statement.

The announcement highlights disparities in care for transgender people as well as coverage inconsistencies among gender-affirming medical procedures.

Top surgery for transmasculine individuals, for example, isn't subject to blanket exclusions like breast augmentation often is, said Noah Lewis, director of TLDEF's Trans Health Project and an attorney who has challenged trans health care barriers.

Many small insurance companies — roughly 83 — cover breast augmentations, Lewis told Law360 on Tuesday. But among major insurers, coverage still varies.

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"This is a landscape that is inconsistent," Kalpana Kotagal, a partner at Cohen Milstein, told Law360 on Tuesday. "Some insurance companies are starting to recognize the importance of getting these issues right. Others are farther behind."

Insurance companies have faced a smattering of enforcement actions from states looking to improve health care access for transgender people, Lewis said. New York's attorney general, for example, went up against EmblemHealth in 2018 to get gender-affirming surgeries covered.

"I think the writing is on the wall," Lewis said, adding that he hopes other major insurance companies will take a similar collaborative approach instead of "wasting resources on litigation."

Kotagal also noted that Aetna's announcement came amid a series of wins for LGBTQ rights advocates. On his first day in office, President Joe Biden adopted a broad interpretation of last year's blockbuster U.S. Supreme Court decision in Bostock v. Clayton County, which held that Title VII covers gender identity and sexual orientation. He lifted the transgender military ban on Monday.

"The Biden administration has come out of the gate with an emphasis on LGBTQ civil rights," Kotagal said. "This is one of the first announcements of its kind, but I don't think it will be the last."

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