The U.S. House of Representatives is wading into a Maine lawsuit over gender-affirming care that could impact veterans’ family members.

U.S. District Judge Nancy Torresen ruled last month that the military’s health insurance provider, TRICARE, violated the constitutional rights of a Maine veteran’s daughter by refusing to pay for her gender-affirming surgeries.

The woman sued the Department of Defense in November 2022 over the denial, and her legal team was recently discussing a settlement with the government. But that settlement could interfere with a bill the House passed last week seeking to ban certain treatments for transgender children of military members.

For decades, federal law has barred TRICARE from covering any surgery that improve a person’s physical appearance “but is not expected to significantly restore functions.” It specifically names “sex gender changes,” among other procedures, as uncovered – yet the DOD acknowledged that TRICARE has paid for such surgeries for active-duty members.

The young transgender woman, who is not identified in court records, is from Sagadahoc County, and her father served more than 23 years in the Marine Corps and Air Force. She sued the Department of Defense, its secretary and the Defense Health Agency (which oversees TRICARE), alleging that this exclusion violates her constitutional right to equal protection. The lawsuit was amended in early 2023 to include another young transgender woman from Florida.

Both women said they needed several gender-affirming surgeries but were denied coverage through TRICARE, even though their doctors agreed the procedures were medically necessary to treat their gender dysphoria, a condition in which a person’s gender identity does not match their assigned sex at birth.

The women are being represented by a team of lawyers, including Bennett Klein from the Boston firm GLBTQ Legal Advocates & Defenders, otherwise known as GLAD. Klein has argued that TRICARE’s coverage rules were rooted in the “remnants of decades-old fallacy and bias that gender affirming surgeries are cosmetic, for purposes of beautification, and frivolous.”

He has also said the insurance provider was inconsistent because it covered the Maine woman’s counseling and hormone replacement therapy, both of which are also gender-affirming care. The women’s attorneys questioned why TRICARE recognizes gender-affirming care as medically necessary for active-duty members but not their dependents.

“Defendants cannot now, and never could, assert any legitimate justification for the obsolete prohibition of the identical care for dependents,” the lawyers wrote.

Klein was not available Monday to discuss their case or the House’s attempt to intervene, according to a spokesperson.

Attorneys for the House did not respond to requests Monday to discuss their motion.

U.S. Rep. Chellie Pingree, D-1st District, said in an emailed statement Monday she was disappointed by the House’s motion to intervene and the bill they voted on last week.

“This fight is about more than just health coverage – it’s about affirming the fundamental humanity and dignity of every person in this country,” Pingree wrote. “I will continue working to ensure that every family has access to the care they need and deserve.”

A spokesperson for Rep. Jared Golden, D-2nd District, did not respond to a request to discuss the lawsuit or the House’s effort to intervene.

A TECHNICAL DEFENSE

The Department of Defense brought forward a mostly technical defense when it sought to end the lawsuit in February, arguing the women didn’t have standing to sue. After Torresen declared on Nov. 1 that TRICARE’s rule against sex gender changes is unconstitutional, court records show the department was interested in settling the case.

In a filing Monday night, the parties said they still believe a settlement is the best way forward, but they need more time to reach an agreement. They are asking Torresen to wait before making her ruling official and have promised to update the court on their progress in another month.

The parties also wrote that they oppose the U.S. House’s request to intervene and that any settlement reached would only apply to the plaintiffs.

In the House’s motions, filed Friday, they ask to defend the statutory exclusion and allege the Department of Justice failed to do so. The filing was authorized by Republican House leaders, including Speaker Mike Johnson.

Lawyers for the House said that the Department of Justice’s “lukewarm defense appears to have become a full-blown abandonment of its duty to defend the constitutionality of federal law in this case.”

They signaled their intent to appeal Torresen’s ruling if it’s made final, saying it was based on an incomplete set of arguments.

The House attorneys argued that TRICARE’s coverage rules are constitutionally appropriate because they were enacted by Congress out of concern for public funding.

“By enacting the statute at issue, Congress decided that a taxpayer-funded health care program should not pay for certain procedures,” the attorneys wrote. “The House is thus protecting the public fisc by defending that law.”

A settlement, the House’s lawyers wrote in court filings, “would presumably leave this Court’s adverse decision on the books, and that decision could bring particular harm to the House.”

Klein has argued that denying coverage for gender-affirming surgery is clearly discrimination because it only affects transgender people (which Torresen agreed with in her order.)  He has also argued that gender-affirming surgeries are not cosmetic, but are necessary to prevent anxiety, depression and suicidality that can result from untreated gender dysphoria.

In her order, Torresen referenced a similar consensus by The World Professional Association for Transgender Health, the American Medical Association and the Endocrine Society.

“The record before me establishes that gender transition surgery is performed not to ‘improve physical appearance’ … but rather to treat the debilitating symptoms of gender dysphoria, a serious medical condition,” she wrote.