Justice Department backs Premera in appeal over transgender surgery coverage ruling

President Donald Trump’s Justice Department is supporting Premera Blue Cross as the insurer seeks to overturn a federal court ruling that found its coverage limits on gender-affirming care discriminatory.

The department filed a 39-page amicus brief on Monday in the 9th U.S. Circuit Court of Appeals. In the filing, the Civil Rights Division, under Assistant Attorney General Harmeet Dhillon, argues that Premera’s policy limiting coverage of gender-affirming surgeries for minors is based on diagnosis and age rather than sex.

The brief uses explicit language to distinguish between procedures that can be covered by insurance and those that are not medically necessary. It says, “To be sure, a competent adult may choose to undergo cosmetic surgery simply because he wishes to do so.” It also argues that such procedures are often not covered because they are not medically necessary.

The Justice Department further contends that people who had surgery “showed a higher prevalence of depression and anxiety as compared to those without surgery.” That claim cites a study published last year in The Journal of Sexual Medicine, which concluded that gender-affirming surgery is beneficial in affirming gender identity but associated with increased mental health risks. The study did not establish causation.

Premera is appealing a ruling issued last year in Washington state after it declined to cover top surgery for two teenage patients. U.S. District Judge Thomas Zilly found that Premera violated the Affordable Care Act by refusing to cover “procedures known as mastectomy, breast reduction, or chest or top surgery” for trans and nonbinary minors while covering comparable procedures for cisgender youth.

Zilly denied the plaintiffs’ age discrimination claims, saying they had not exhausted all administrative remedies, and he also declined to grant class-action status to the lawsuit.

In August, Zilly upheld his ruling even after the U.S. Supreme Court’s decision in United States v. Skrmetti, which upheld a Tennessee ban on gender-affirming care for minors. He said that ruling did not control the Washington case.

Lambda Legal said the district court ruling was an important victory for access to transgender health care. Omar Gonzalez-Pagan, Lambda Legal counsel and health care strategist, said, “The Constitution only sets a floor, not a ceiling.” He argued that federal and state anti-discrimination laws such as Section 1557 of the Affordable Care Act can provide protections beyond those recognized by the Supreme Court under the Constitution.

The Justice Department now says the lower court got it wrong. In its brief, the department argues that Skrmetti established that “regulating medical procedures on the basis of diagnosis does not automatically amount to discrimination on the basis of sex.” It also says the district court’s conclusion conflicted with Supreme Court and appellate authority.

Why the case matters

The appeal comes as transgender health care continues to face legal and political pressure in the United States. A ruling for Premera could narrow how courts interpret sex discrimination under the Affordable Care Act in coverage disputes involving gender-affirming care for minors.

For transgender patients and their families, the outcome could affect whether insurers can exclude surgeries that are covered for cisgender youth but denied to transgender and nonbinary minors.