Veterans Clinic Threatens to Sue VA in Matter Representing Transgender American Veterans Association

Today, on Transgender Day of Remembrance, Veterans Legal Services Clinic client Transgender American Veterans Association (TAVA) demanded in a letter that the U.S. Department of Veterans Affairs act on the organization’s 2016 rulemaking petition for the agency to offer gender-confirmation surgery for transgender veterans.

TAVA served the demand letter on VA more than seven years since it submitted the petition for VA to provide gender-confirmation surgery, which is essential and often lifesaving medical care for so many of the over 163,000 transgender veterans. Despite repeatedly stating his commitment to fulfilling TAVA’s request, VA Secretary Denis McDonough has not formally responded to the rulemaking petition. In its demand letter, TAVA informs VA that it will file suit in federal court unless VA issues a formal response within 30 days.

“On Transgender Day of Remembrance, we publicly honor and mourn those in our community killed by transphobic violence,” said Rebekka Eshler, President of TAVA. “We feel the pain of this senseless loss, and, in their memory, fight against gender-based violence and discrimination. Transgender veterans have waited far too long for the medically necessary health care they require. It is high time that Secretary McDonough follow through on his public promises to the transgender veteran community. Statements are nothing without action.”

In the demand letter, TAVA cites evidence that gender-confirmation surgery drastically reduces the risk of suicidal ideation, depression, and psychological distress for many transgender people who live with gender dysphoria. These risks are especially acute for transgender veterans, as veterans already exhibit disproportionately high rates of suicide and depression. 

“Gender-confirmation surgery has long been understood by major medical associations as part of critical and effective treatment for gender dysphoria,” said Sonora Taffa ’24, a law student intern with the clinic. “VA’s categorical exclusion of gender-confirmation surgery is inconsistent with its provision of other forms of gender-affirming care and treatment for conditions other than gender dysphoria.” 

TAVA’s demand letter explains that VA’s nearly eight-year delay in responding to the rulemaking petition violates statutory requirements that VA decide matters presented to it within a reasonable time. If VA does not respond to TAVA’s rulemaking petition promptly, TAVA will bring federal litigation against the agency. 

“VA’s failure to respond to TAVA’s rulemaking petition is a fundamental violation of its obligations under the Administrative Procedure Act,” said Alex Johnson ’24, another law student intern representing TAVA. “This delay has consigned transgender veterans to a state of uncertainty that jeopardizes their health and safety. Every day that the VA fails to formally operationalize Secretary McDonough’s public statements is another day that transgender veterans must weigh whether they can pay out of pocket for these lifesaving procedures instead.”

Transgender American Veterans Association (TAVA) is a nationwide, nonpartisan, nonprofit organization that works to ensure its members receive full services and dignified treatment from VA and to provide a supportive community for all veterans who identify under the “Transgender Umbrella.”

The Veterans Legal Services Clinic, which represents the petitioner, is part of the Jerome N. Frank Legal Services Organization at Yale Law School.