Gordon v. Aetna Life Insurance Co.
Dr. Gennifer Herley, a transgender woman who experiences severe gender dysphoria due to the incongruence between her lifelong knowledge that she is a woman and her stereotypically masculine facial features, sought to receive facial surgery to treat her gender dysphoria. Her healthcare providers determined, based on Dr. Herley’s individual circumstances and widely accepted professional standards of care, that such treatment was medically necessary. Aetna Life Insurance Co., which administers Dr. Herley’s health benefits plan, however, refused to cover the surgery. Although Aetna covers medically necessary facial surgery for cisgender women, Aetna’s policy is to categorically deny coverage for facial surgery that is performed “as a component of a gender transition,” irrespective of medical need.
Following the coverage denial, Dr. Herley joined a federal lawsuit challenging Aetna’s policy as unlawful under an Affordable Care Act (ACA) provision that prohibits sex discrimination in the provision of health benefits. The district court granted a preliminary injunction barring Aetna from applying its categorical coverage exclusion to Dr. Herley and requiring Aetna instead to conduct an individualized assessment of medical necessity. Aetna appealed to the Second Circuit.
On appeal, Public Citizen represents Dr. Herley, co-counseling with Dr. Herley’s trial counsel at Wardenski PC, Cohen Milstein Sellers & Toll, and Advocates for Trans Equality Education Fund. Asking the court of appeals to affirm the injunction, our brief explains that Dr. Herley has standing to seek an injunction because she has been injured by the application of Aetna’s blanket coverage exclusion. The brief also explains that the district court correctly held that Aetna’s policy discriminates based on sex, in violation of the ACA and that the equities support the injunction. Without judicial relief, Dr. Herley is at risk of serious mental and physical harm as a result of her severe and worsening gender dysphoria; in contrast, conducting an individualized assessment of Dr. Herley’s claim—just as Aetna would for a cisgender woman seeking the same surgery—would cause no harm to Aetna.