Human Rights Watch submits this comment in response to the Notice of Petition for Rulemaking and Request for Comments on the continued exclusion of surgical procedures from the medical benefits package offered to transgender veterans by the Department of Veterans Affairs (VA). Human Rights Watch urges the VA to remove this exclusion as arbitrary and discriminatory. It should be seen as contrary to the statutory obligation of the VA to provide necessary medical care to veterans.
Under federal law, the Secretary of Defense is required to furnish to veterans “medical and hospital care that the Secretary determines to be needed.” In implementing that directive, the Secretary has established the medical benefits package, and the criteria used for inclusion in that package is whether the particular care is “medically needed,” defined as “care that is determined by appropriate health care professionals to be needed to promote, preserve or restore the health of the individual and to be in accord with generally accepted standards of medical practice.” In keeping with that definition, the VA covers and/or provides treatment for gender dysphoria for transgender veterans, including hormone replacement therapies, counseling, and other health services.
However, the VA has for decades excluded coverage for surgical procedures related to gender transition. For some individuals, however, surgical procedures for the treatment of gender dysphoria are necessary and meet the criteria for inclusion in the benefits package. Exclusion of surgery in all cases fails to meet the standards of care set forth by the World Professional Association for Transgender Health (WPATH), standards that are recognized as authoritative by numerous medical bodies including the American Medical Association, the Endocrine Society, and the American Psychological Association.
The medical necessity of surgery for some individuals in care for gender dysphoria has been acknowledged by the Department of Veterans Affairs. In a letter from then Under Secretary for Health in the Department of Veterans Affairs David Shulkin, MD to Senator Elizabeth Warren dated November 10, 2016, Shulkin stated that “surgical procedures are now widely accepted in the medical community as medically necessary treatment for gender dysphoria.” In this letter, Under Secretary Shulkin stated that the VA was considering issuing a Notice of Proposed Rule Making for removal of this exclusion from the benefits package.
Shortly thereafter, however, the Trump administration announced that the exclusion would not be removed, prompting a Petition for Rulemaking filed by transgender veterans including Gio Silva, a veteran who was denied a mastectomy by the VA because he is transgender. Mastectomies and other surgeries of many types are offered to cisgender veterans when determined necessary for mental or physical health. As Human Rights Watch and others have extensively documented, transgender people face high levels of discrimination in health care settings, and continuation of this rule by the VA serves as yet another barrier to access to health care that is unnecessary and unjust.
For these reasons, Human Rights Watch urges the Department of Veterans Affairs to remove the exclusion of surgical procedures for transgender individuals from the benefits package.
 38 USC 1710
 38 CFR 17.38 (b)
 WPATH, Standards of Care for the Health of Transexual, Transgender and Gender Non-Conforming People, Version 7, https://www.wpath.org/publications/soc and Lambda Legal, “Professional Organization Statements Supporting Transgender People in Health Care,” https://www.lambdalegal.org/publications/fs_professional-org-statements-supporting-trans-health (accessed September 4, 2018.)
 See, appendix 1, Brief of Petitioners, Fulcher v Secretary of Veterans Affairs, USCA Federal Circuit, No. 2017-1460.
 US Department of Veterans Affairs, CHAMPVA Operational Policy Manual, 02.02.03 https://www.vha.cc.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001036/content/554400000009126/02.02.03-PROPHYLACTIC-MASTECTOMY,-PROPHYLACTIC-OOPHORECTOMY,-AND-PROPHYLACTIC-HYSTERECTOMY (accessed September 6, 2018.)
 Human Rights Watch, “You Don’t Want Second Best: Anti-LGBT Discrimination in Health Care ,” July 2018 https://www.hrw.org/report/2018/07/23/you-dont-want-second-best/anti-lgbt-discrimination-us-health-care