LGBTQ legal advocates are suing Premera Blue Cross over a policy that denies gender-affirming surgery coverage for all patients under 18.
Lambda Legal, QLaw Foundation of Washington, and Seattle firm Sirianni Youtz Spoonemore Hamburger PLLC filed a lawsuit in the US District Court of Western Washington this week on behalf of a 15-year-old trans boy, referred to as A.B., and his parents.
They say the boy, his doctors, and his family all agree the surgery is necessary to treat his dysphoria, and that the insurer’s age cut-off is “arbitrary” and doesn’t follow up-to-date clinical guidelines.
The boy’s lawyers argue Premera discriminated against him on the basis of age and sex, because he’s trans, and that the insurer violated anti-discrimination protections enshrined in the Affordable Care Act. After all, he has the right to be treated as badly by insurance companies as cis people.
“There's nothing magical about being 18 and trans versus 15 and trans and being able to make your medical decisions, particularly when there's parental consent involved and there's a physician who's saying that this surgery is medically necessary," said Denise Diskin, executive director of QLaw.
A Premera Blue Cross spokesperson couldn’t comment on the lawsuit, but she said that “LGBTQI+ people have a right to safe, affordable care,” and that the company based its policy on the most recent clinical evidence. “There is not strong evidentiary support for surgical interventions in minors,” she wrote in an email.
Last September, the World Professional Association for Transgender Health (WPATH) lifted minimum age restrictions on gender-affirming care for minors. The organization, which sets evidence-based standards for transgender health care around the world, said top surgery can be considered when a child’s multidisciplinary medical team determines it is clinically and developmentally appropriate.
Another leading organization advising trans care, The Endocrine Society, says doctors should determine the timing of top surgery for their patients, but that there isn’t enough evidence to suggest any specific age requirement.
The plaintiff, A.B., socially transitioned in May 2021 and started taking testosterone the following February. He used a binder to flatten his chest, trading dysphoria for daily discomfort.
Doctors recommended a masculinizing chest surgery to remove A.B.’s breast tissue and create a flat chest. Gender-affirming surgeries are less common than puberty blockers or hormones for youth, and a trans boy treated at an early age won’t need surgery at all if he doesn’t develop breasts. Studies show chest masculinization reduces depression and anxiety for those who need it.
A.B. was supposed to have top surgery on Tuesday, but Premera Blue Cross denied coverage for the procedure in December based on its determination that gender-affirming surgery is never medically necessary for youth.
Premera’s policy is to deny all trans surgeries for patients under 18, despite covering similar procedures for cis children. For instance, lawyers for the plaintiffs say Premera doesn’t apply age restrictions on breast reduction surgeries for cis girls or gender-affirming mastectomies for cis boys with gynecomastia, a hormonal condition that causes breast development.
In policy documents, Premera points to studies that have found that the prefrontal cortex–the area of the brain that regulates planning, memory, and impulse control–does not fully develop until our mid-20s as evidence that these decisions are too mature for risk-taking teens.
But nothing mystical happens to the brain at 25. Experts say we can’t look to neurobiology to tell us when we really grow up. WPATH found age to be an imprecise cognitive measurement of maturity. Trans youth experience the same neurological developmental stages as cis teenagers, so why apply more stringent restrictions to trans kids making the same choices as cis kids about similar procedures?
Diskin said the company's arguments speak to a discriminatory mythology that peer-pressure or coexisting mental health issues influence transness. "Or because, you know, you saw somebody cute on TikTok and you wanna look like them,” she said. “I think that that's very degrading to trans identities and to trans people.”
Anti-trans activists and Republican lawmakers fighting to restrict gender-affirming care for minors weaponize those same pervasive ideas about brain development and behavior.
A.B.’s family is not speaking to reporters, but his father told Lambda Legal that no family should worry about providing the care their children need. “Are they just supposed to sit there and see their children suffer? This policy has to change,” he said. Moreover, top surgery costs somewhere between $6,000 and $10,000 out of pocket. The family’s lawyers say they’d struggle to pay for the surgery without coverage.
In December, Lambda Legal won a similar trans medicine case in Washington against Blue Cross Blue Shield of Illinois.
After allowing the case to go forward as a class action, a federal judge in Tacoma ruled the insurer could not skirt the ACA’s anti-discrimination policies by denying trans people on employer-provided ERISA health plans coverage for affirming care. The transgender teen and his parents who filed the suit received insurance under the Catholic Health Initiatives Health Plan, which included a clause excluding trans care.
Lawyers in A.B.'s case expect to hear an official response from Premera Blue Cross next month.