Gordon v. Aetna Life Insurance Company

Dr. Gennifer Herley is 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. Dr. Herley wishes to receive facial surgery to treat her gender dysphoria, and her healthcare providers have determined, based on Dr. Herley’s individual circumstances and widely accepted professional standards of care, that such treatment is medically necessary. Aetna Life Insurance Co., which administers Dr. Herley’s health benefits plan, however, refuses 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. Dr. Herley then sought a preliminary injunction that would bar Aetna from applying its categorical coverage exclusion to her and require Aetna to conduct an individualized assessment of medical necessity. The district court granted the injunction. It concluded that Aetna’s policy likely violates the ACA, that Dr. Herley will suffer irreparable harm if she cannot access medically necessary treatment for her severe gender dysphoria, and that Aetna will suffer no harm from providing Dr. Herley with an individualized coverage determination. Aetna appealed to the Second Circuit.

Together with Wardenski P.C., Cohen Milstein Sellers & Toll LLP, and Advocates for Trans Equality Education Fund, Public Citizen represents Dr. Herley on appeal, seeking affirmance of 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. On the merits, we explain that the district court correctly held that Aetna’s policy discriminates based on sex, in violation of the ACA. Had Dr. Herley’s birth-assigned sex been female, Aetna would have conducted an individualized assessment to determine whether the facial surgery she requested was medically necessary; because her birth-assigned sex was male, however, Aetna’s policy categorically foreclosed such an assessment. Finally, we explain that the equities warrant an 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 it would for a cisgender woman seeking the same surgery—causes no harm to Aetna.