A group of six transgender women who sued Aetna Insurance for denying them facial feminization surgery won a preliminary injunction against the company on Sunday.

While the ruling applies to only two of the women, the court’s reasoning bodes well for other trans patients nationwide seeking coverage of the procedure and other gender-affirming care as the case moves through the courts.

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The six women sued Aetna after they were categorically denied facial feminization surgery (FFS), based on the insurer’s internal guidance, Clinical Policy Bulletin 0615, which describes FFS as “cosmetic” and excludes all coverage of the procedure, Erin in the Morning reported.

The ruling applies to two patients, Dr. Jamie Homnick and Dr. Gennifer Herley, who sought coverage for FFS to treat severe gender dysphoria. Both women reported severe depression, suicidality, and intensifying gender dysphoria related to facial masculinization. Neither benefited from puberty blockers or hormone therapy as part of their transitions.

Judge Victor A. Bolden of the U.S. District Court for the District of Connecticut granted the two patients’ request for a preliminary injunction, requiring Aetna to set aside the blanket exemption in the course of considering their claims. He called the denials a clear case of sex discrimination.

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“To be clear, the issue is not whether Aetna’s policy exclusion prohibits this type of gender-affirming care, but rather that Aetna’s policy exclusion prohibits only transgender individuals, the only individuals who can experience gender dysphoria, from receiving this type of gender-affirming care,” Judge Bolden wrote.

“Thus, when Aetna decided that facial gender-affirming procedures ‘performed as a component of a gender transition [were] not medically necessary and cosmetic,’ Aetna prohibited only transgender individuals from seeking this medical care, and thus discriminated on the basis of sex.”

The judge based his decision in part on Bostock v. Clayton County, the landmark U.S. Supreme Court decision in 2020 which held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination on the basis of sexual orientation or gender identity. The judge pointed as well to the application of Title IX in the 2010 Affordable Care Act to find that Aetna’s exclusion constitutes sex discrimination.

Bolden also referenced the Supreme Court’s decision in United States v. Skrmetti, writing that the case barring gender-affirming care for minors in Tennessee does not infringe on the plaintiffs’ rights to FFS, a preemptive challenge to arguments against the women’s right to the procedure as the case proceeds.

A few states — including Colorado, Oregon, and Washington — already explicitly prohibit insurers from categorically denying FFS for trans patients, but most states leave the decision up to insurers. 

The plaintiffs were represented by Advocates for Trans Equality, Wardenski PC, and Cohen Milstein. The same legal team successfully challenged Aetna’s categorical exclusion of breast augmentation for transgender women in 2021, resulting in a settlement that ended the exemption.

“Gender-affirming facial surgery can be a critical part of a transgender person’s care,” writes trans journalist Erin Reed. She noted that a UCLA study published in the Annals of Surgery noted that trans recipients of FFS “reported significantly better outcomes across several measures of psychosocial health, including reduced anxiety, depression, and social isolation.”

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