The VA Said It Would Cover Gender Affirmation Surgeries. Trans Vets Are Still Waiting.

There are a lot of things Landon Marchant could have spent $10,000 on.

Paying off credit card debt. Going to college sooner. Finding a place to live rather than sleeping on couches or in their car.

But surgery was a must.

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The Air Force veteran, who identifies as both transgender and nonbinary, was working as a plumber in Washington, D.C., carrying pipes up and down stairs in the swampy D.C. weather. They sometimes clocked 12 miles a day on stairs alone.

Wearing a chest binder -- a sports bra-like piece of clothing that flattens breasts -- made breathing in those conditions difficult. Not to mention, binding for too long is known to cause rib damage.

So in 2014, Marchant paid $10,000 out of pocket to have top surgery, the gender affirmation surgery that removes breasts.

Then, like now, the Department of Veterans Affairs wouldn't pay for the surgery. Since 2013, the VA has covered a host of nonsurgical treatments for transgender veterans, including hormone therapy, mental health care, pre- and post-operative care, voice coaching and medically necessary prosthetics. But surgery itself has been explicitly banned from coverage, leaving veterans like Marchant to scrape together the money for procedures that may save their lives.

Having the VA cover the surgery "would have made such a huge difference," Marchant said in a recent interview with Military.com. "By the time I got to college, which was two years after top surgery, I had $50 to my name."

In June, VA Secretary Denis McDonough announced the department was moving to cover gender affirmation surgery. It was one of a series of moves the Biden administration made to show it is focusing on LGBTQ rights, including allowing transgender Americans to serve openly in the military after former President Donald Trump banned their service.

McDonough made his announcement at a Pride Month event in Orlando, Florida, marking the fifth anniversary of the shooting at the gay nightclub Pulse that killed 49 people.

"We're making these changes not only because they are the right thing to do, but because they can save lives," McDonough said in June.

The life-and-death stakes of gender affirmation are closely tied to alarming numbers of suicides and suicidal ideation in the transgender community.

The National Center for Transgender Equality's most recent comprehensive survey of transgender people in 2015 found that 40% of respondents had attempted suicide in their lifetimes, compared with 4.6% of the overall U.S. population. A staggering 82% who responded to the survey had thought about killing themselves at some point in their lives.

A separate 2019 study by the UCLA School of Law Williams Institute found that access to gender-affirming health care reduced the risk of suicide: 5.1% of those who wanted surgical care and received it had attempted suicide in the past year, compared to 8.5% of those who wanted surgical care but did not receive it.

Despite McDonough’s announcement, transgender veterans are still waiting to have their surgeries covered by the VA. They allege the Biden administration is dragging its feet, with the summer announcement a proclamation that didn't herald an immediate change in policy. Rather, it kicked off a formal rulemaking process that can take about two years to complete.

Transgender veterans and their advocates say the VA is unnecessarily using a slow and bureaucratic process and that communication between them and the department since the summer has been minimal, leaving them in the lurch as they wait for care considered medically necessary by leading health groups including the American Medical Association and the American Psychological Association.

Much of the groundwork for a rule change was done in 2016, when the Obama administration was contemplating covering surgical procedures.

"When they talk about, 'Well, we need to do an economic impact study and really figure out the logistics,' that seems a little disingenuous because that's already been done," said Hanna Tripp, a transgender Air Force veteran. "It's really hard to overemphasize how close in 2016 this rule was to being implemented. If Hillary Clinton got elected, it would have been implemented that year."

The fact that transgender service members came close to full medical support at the end of Obama's tenure, but still are fighting to receive coverage, makes the bureaucratic wait insufferable for advocates.

"It's easy to say we're gonna do a thing and make a big deal about that, but the actual movement, the things that people are asking for, are not coming to fruition yet," said Lindsay Church, the executive director of Minority Veterans of America, who identifies as nonbinary, meaning they identify as neither male nor female. "We've seen announcements, and it's cool, but also at the end of the day, you still can't go into the VA and be treated with dignity and respect as a trans or nonbinary person."

Rewriting the Rules

The department has undertaken the rulemaking process to change the surgery policy in fits and starts before, but it's starting from scratch this time around.

In 2013, when nonsurgical care began to be covered for transgender veterans, VA regulations were updated to specify the department's medical benefits package did not include "gender alterations."

Then in 2016, the Obama administration started the process that would have allowed the VA to cover surgeries, but scuttled it after Trump won that year's presidential election, citing funding concerns. When Trump announced over Twitter he was banning military service by transgender Americans, he claimed in part the military would be "burdened with the tremendous medical costs."

Minority Veterans of America has called Trump's transgender military ban a "mar on our nation's military history," and four years of the Trump administration and a halting of momentum for medical care for transgender service members only added to a sense of urgency once Biden took office.

Advocates suspect the Obama administration scrapped the idea to cover surgery for transgender veterans at the end of his tenure because the process couldn't be finished before the next administration, opposed to the rule change, took office. Now, the clock is again running for those vets.

Because the ban on gender-affirmation surgery is part of a formal regulation, the VA says it must go through the formal rulemaking process to change the policy under the federal Administrative Procedure Act.

Since McDonough's announcement, the VA has started drafting the new rule and a formal cost-benefit analysis called a Regulatory Impact Analysis, the department told Military.com in written responses to questions.

The cost-benefit analysis is a required part of the rulemaking process. The proposed rule is undergoing internal VA reviews right now and will next go to the White House Office of Management and Budget for evaluation.

"VA recognizes that the 'gender alterations' exclusion in the medical benefits package is inconsistent with VA values of equity and respect for all veterans," the department said.

The Biden administration's focus on process and following the Administration Procedure Act comes after the Trump administration consistently lost lawsuits pointing to that law and accusing Trump of arbitrary and capricious policy changes.

The department has already started planning how to actually conduct surgeries, which it said it expects to happen at a mix of VA and non-VA facilities.

The VA also said it "has continued dialogue with LGBTQ advocacy groups" despite some claiming a lack of communication, but added those groups have the same information as the public about the rulemaking process.

The National Center for Transgender Equality estimates there are about 134,000 transgender veterans. Not every transgender person needs surgery, and the VA's initial estimate is that about 4,000 veterans may meet the medical criteria, it told Military.com.

In 2016, the VA estimated 687 Veterans Health Administration patients could seek transition-related treatment annually if the policy were changed to allow surgery, according to an economic impact analysis disclosed as part of a lawsuit filed in 2017 by two transgender veterans seeking to have their surgeries covered.

Covering surgery could cost the VA anywhere from $3.5 million to $78 million annually, depending on the number of patients and the types of surgeries they get, according to the 2016 analysis. The department's total budget in fiscal 2021 was $243 billion.

In response to the lawsuit, the VA in 2018 took public comment on whether to cover surgery, as part of a key step in the rulemaking process.

Because the department already did cost analysis in 2016 and took public comment in 2018, transgender veterans and advocates question why the VA can't expedite the rulemaking process now.

Jennifer Dane, executive director of the LGBTQ military and veterans group Modern Military Association of America, said her organization has gotten no guidance on how far the VA has advanced with the policy change since the summer announcement.

"It is troubling because obviously we want our veterans to be covered as quickly as possible," Dane said.

The VA told Military.com it is using "prior work in developing the current rulemaking that is in internal review." But the department is also updating the cost analysis to reflect projections for fiscal years 2023 through 2027 and planning to take new public comment, it added.

In the meantime, veterans are waiting.

The Cost of Waiting

One of those veterans is Sarah Klimm, who realized she was transgender about halfway through her 23-year career in the Marine Corps.

Klimm has explored getting facial feminization surgery, which she hopes would help stop people from calling her the wrong gender and other discrimination she has experienced out in public.

"Generally, I'm a person that's like, 'Well, it is what it is.' But it's affected me a lot," the 47-year-old said of not being able to get surgery. "I'm not old, but I'm aging. Am I going to be able to finally get this when I'm 70 years old? I want to be able to enjoy who I am completely while I still have some youth left."

But facial feminization surgery would cost her about $35,000 to $40,000 out of pocket. She's thought about traveling to Mexico to get the surgery, which she said could shave about $10,000 to $15,000 off the cost. But that's still cost prohibitive, particularly because she has six children and a wife to think about.

"I can't even come up with this money for myself, and if I could, that wouldn't leave anything for my family," Klimm said.

McDonough's announcement over the summer left her frustrated.

"There was no detail given and then he gives the, 'It's going to be a couple years for the rulemaking process,'" she said. "You're full of shit. The rulemaking process has already started on this in 2018. You just need to pick it up from there."

Transgender veterans say the VA's policy on surgery also has ripple effects on the other coverage they receive from department -- or rather, don't receive.

Klimm, for example, said the VA denied her coverage for hormone therapy, even though the department's policy is supposed to cover that treatment. She also has Tricare and was able to get coverage for her hormone therapy through that service.

Tripp, the transgender Air Force veteran, spent about $50,000 on gender-affirmation surgery outside the VA system because she felt "like there was a weight" on her without it. She had private insurance, but between co-pays and related costs such as travel, the bill added up.

When she later had to go to an emergency room in "severe abdominal pain" from an intestinal obstruction, the VA said the illness happened close enough to her surgery that it was considered part of the procedure and so wouldn't cover the ER visit, even though Tripp says the issue had nothing to do with the surgery and happened more than a week after it.

"That was absolutely devastating to me," Tripp said. "Transitioning is a very intrinsically difficult process. It's a very solitary process."

"After everything you've sacrificed and did for your country, you're not even worthy for emergency care because of this just one aspect," she said.

Tripp said she contemplated suicide, but found purpose again when she started working in the office of former Rep. Joe Kennedy III, D-Mass.

She said she thinks the initial denial was discriminatory, but as she appealed to more and more VA officials, Tripp found they did not understand their own regulations, something she thinks a clean policy that includes coverage for surgery would correct.

"The problem is when you kind of piecemeal the care that is provided, there's a lot of confusion," she said. "There's a lot of ambiguity, and there's a lot of leeway for bad actors to kind of discriminate against populations."

An Uncertain Future

Even once the VA actually starts covering surgery, transgender veterans and advocates are worried a future administration could ban it again, much like the back-and-forth over transgender military service.

To prevent a similar roller coaster, transgender veterans and advocates are calling on Congress to pass a law ensuring the VA covers gender-affirmation surgery so the policy can't be undone in a few pen strokes. But doing so would be a heavy lift in a Congress where Democrats have only narrow majorities and Republicans mostly oppose VA coverage for gender-affirmation surgery.

The VA declined to comment on whether it would support congressional action, saying it does "not comment on proposed or pending legislation."

Asked whether he shares transgender veterans' frustrations with the rulemaking process or believes Congress should codify the policy change, Senate Veterans Affairs Committee Chairman Jon Tester, D-Mont., pledged to support congressional efforts to make the VA "a more welcoming place for everyone who fought to protect our freedoms."

"Every veteran deserves equal access to quality care from VA – and this includes our LGBTQ+ veterans," he said in a written statement to Military.com.

A spokesperson for House Veterans Affairs Committee Chairman Mark Takano, D-Calif., declined to comment for this article, but highlighted a June statement from Takano supporting McDonough's announcement.

"The time has come for our nation to reckon with the effects of these discriminatory military policies and undo the damage that has been done," Takano, who is gay, said in the earlier statement.

Republicans, who could control Congress after next year's midterm elections, have accused the VA of "advancing a radical liberal agenda," in the words of House Veterans Affairs Committee ranking member Rep. Mike Bost, R-Ill., after McDonough's June announcement. Rep. Jack Bergman, R-Mich., has introduced a bill to ban the VA from covering surgery that has the support of 22 Republicans, including Bost.

As veterans wait for the wheels of bureaucracy to turn, Marchant, the Air Force veteran who got top surgery in 2014, called on the VA to try to support surgeries in some way in the interim, perhaps through sponsorships, as the rulemaking process that can take up to two years proceeds.

"Two years for the VA actually seems like a fair, almost fast timeline because it's a government entity," Marchant said. "But at the same time, that two years, people are suffering, and their mental and physical health is declining. I would like to see some middle ground ... because two years can be fatal."

-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.

Related: VA Moves to Offer Gender Confirmation Surgery to Vets