Wardenski P.C. Files Class Action Against Aetna for Denying Gender-Affirming Facial Surgeries

Gordon v. AetnaHealth Care DiscriminationLGBTQ Equality
Written By Joseph Wardenski

On September 10, 2024, Wardenski P.C., Transgender Legal Defense and Education Fund (TLDEF) (now known as Advocates for Trans Equality (A4TE)), and Cohen Milstein Sellers & Toll PLLC, filed a federal class action civil rights lawsuit against Aetna Life Insurance Company (Aetna) on behalf of three transgender women — Binah Gordon, Kay Mayers, and S.N. — who were denied coverage for medically necessary gender-affirming facial reconstruction procedures. The lawsuit, Gordon v. Aetna Life Insurance Company, No. 3:24-cv-1447-VAB (D. Conn.), was filed in the United States District Court for the District of Connecticut.

“With my job, I am on the road every week, spending a lot of time in places that are not as safe for trans people as the community where I am blessed to work. For years, I struggled with fear and anxiety around the danger my facial features put me in while traveling and finding lodging, and even leaving my home, which made me less effective at work and impacted my weekends and all my relationships. My doctors knew I was desperate to improve my quality of life,” said Binah Gordon, who is a plaintiff in the case. “When I was finally able to get the gender-affirming surgeries that I needed, it was like my life finally began. When I looked in the mirror, I used to see an obstacle, a laughingstock, a target, or a victim. Today in the mirror I see a capable, socially and spiritually connected, empowered and confident professional, partner, sister, and aunt.”

“For transgender women, gender-affirming facial surgeries are not about vanity or appearance – they are about providing lifesaving medical care that enable them to live full authentic lives and reduce distress caused by gender dysphoria,” said Gabriel Arkles, Co-Interim Legal Director at Advocates for Trans Equality (A4TE). “Aetna’s refusal to cover gender-affirming healthcare, despite the medical necessity, forces many trans women to continue to suffer, and a minority to assume the major financial burden of paying out-of-pocket.”

Each of the plaintiffs have been deeply impacted by Aetna’s policy:

  • Kay Mayers, a 52-year-old resident of Alaska, has been unable to afford the necessary facial surgery due to Aetna’s refusal to cover the costs. She continues to experience severe gender dysphoria and fear for her safety.

  • Binah Gordon, a 42-year-old resident of Nebraska, was forced to cover the cost of her facial surgery herself, spending approximately $35,000 after Aetna refused to cover the surgery, causing her to experience a long, painful delay in obtaining this medically necessary care.

  • S.N., a 48-year-old from Pennsylvania, paid nearly $50,000 out of pocket for gender affirming facial and voice surgeries. Her appeals to Aetna were denied, forcing her to bear the financial burden for gender-affirming healthcare that her medical providers had deemed medically necessary. 

Gender-affirming facial surgeries are essential components of the medical treatment for gender dysphoria, a serious medical condition that arises from the incongruence between a person’s gender identity and their physical sex characteristics. Despite covering similar reconstructive surgeries for cisgender patients, Aetna categorically excludes these procedures for transgender people, classifying them as cosmetic, thus violating the Affordable Care Act.

“All of our clients, and thousands of others like them, were denied insurance coverage by Aetna for gender-affirming facial surgeries that their treating providers determined were medically necessary to treat their gender dysphoria and improve their overall well-being,” said Joseph Wardenski, Principal of Wardenski P.C. “Aetna has ignored the medical consensus and wrongly treated this critical health care as ‘cosmetic.’ Aetna’s refusal to recognize the medical necessity of this critical health care is causing unnecessary harm to many transgender women on Aetna health plans.”

In 2021, Transgender Legal Defense and Education Fund (TLDEF), now known as A4TE, and Cohen Milstein worked on behalf of four women denied coverage by Aetna for medically necessary breast augmentation. The insurance company eventually updated their policy and expanded their coverage to include the procedure.

“We are disappointed that Aetna retains this outdated exclusion and are filing this lawsuit as a crucial step towards ensuring that the tens of thousands of transgender people who rely on Aetna receive the care they need without facing additional barriers solely because they are trans,” said Harini Srinivasan, Cohen Milstein Sellers & Toll PLLC Associate. “This lawsuit is a crucial step toward ensuring that the tens of thousands of transgender people who are customers of Aetna receive the care they need without facing additional barriers based solely on their gender identity.”

The complaint alleges that Aetna is violating Section 1557 of the Affordable Care Act, which prohibits discrimination based on sex in federally funded healthcare programs. The lawsuit seeks a declaratory judgment, injunctive relief to end Aetna’s exclusionary policy, and compensatory damages for all policyholders who have had to pay out of pocket for gender-affirming facial surgery because of Aetna’s discriminatory exclusion.

Joseph Wardenski leads the Wardenski P.C. case team. Former Wardenski P.C. Nigel Shelby Civil Rights Litigation Fellow Alexandra Vance made substantial contributions to the case. Plaintiffs are also represented by Gabriel Arkles, Ezra Cukor, Sydney Duncan, and Fiadh McKenna of Advocates for Trans Equality, and Christine E. Webber, Harini Srinivasan, and Aniko R. Schwarcz of Cohen Milstein Sellers & Toll PLLC.        

To learn more about the lawsuit or to sign up to potentially participate in the class action lawsuit, click through to the Aetna Gender-Affirming Facial Surgery Litigation case page on the Cohen Milstein Sellers & Toll website, or by clicking the “Learn More” button below.

Joseph Wardenski
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