Washington State

Office of the Attorney General

Attorney General

Bob Ferguson


Washington leads effort to change VA rule denying surgical services to transgender veterans

OLYMPIA — Attorney General Bob Ferguson is leading a coalition of nine states and the District of Columbia urging the U.S. Department of Veterans Affairs to provide transgender veterans access to medically necessary health care.

In the amicus (“friend of the court”) brief filed today in Fulcher v. Secretary of Veterans Affairs, Ferguson asks the U.S. Court of Appeals for The Federal Circuit to order the VA to amend or repeal a rule that prevents transgender veterans from using their medical benefits to cover sex reassignment surgery.

"Access to medically necessary healthcare should be available to all of those who sacrifice for our country," said Ferguson. "Veterans deserve to get the care they need, no matter their gender identity."

Since 1999, the department has excluded “gender alterations” from eligible veterans’ medical benefits packages. The implementing directive states that “sex reassignment surgery cannot be performed or funded by VA.”

In May 2016, U.S. Marine Corps veteran Dee Fulcher, U.S. Army veteran Giuliano Silva and other transgender veterans submitted a petition asking the VA to change the rule. The VA initially considered issuing a notice of rulemaking, but withdrew its consideration in November 2016. Fulcher and the other petitioners filed a lawsuit in January.

The VA refuses to cover surgical services for transgender veterans while covering similar services for non-transgender veterans, such as mastectomies and hysterectomies. The VA provides no legitimate basis for refusing to follow the medical community’s protocols for treating transgender people. Ferguson and the attorneys general from California, Connecticut, Hawaii, Illinois, Massachusetts, New York, Oregon and Vermont, as well as the District of Columbia, argue that conduct unlawfully perpetuates civil rights violations in the U.S. healthcare system.

Ferguson presents evidence that covering sex reassignment surgery will not significantly raise health care costs and premiums. Many of the states joining the brief ensure equal access to health care services, and none has seen a significant increase in costs. In Seattle, for example, the cost of expanding access to cover transgender individuals amounted to two-tenths of one percent of the city’s total health care budget.

Transgender individuals face physical suffering, depression and suicidal thoughts when they are denied or unable to access medically necessary health care, including sex reassignment surgery. Untreated individuals who suffer from distress due to the stigma surrounding their gender identity are at higher risk for turning to alcohol or drug use.

If the more than 150,000 transgender veterans, active service members and reserves serving their country continue to lack access to the necessary medical care they need, the costs associated with these potential negative health effects would fall upon the states.

The states argue that the negative effects of the VA rule significantly outweigh the costs of covering transgender health services.

Assistant Attorney General Marsha Chien is the lead author on this brief for Washington.

Oral argument in the case has not been set.

The Wing Luke Civil Rights Unit was created in 2015 to protect the rights of all Washington residents by enforcing state and federal anti-discrimination laws. It is named for Wing Luke, who served as an Assistant Attorney General for the state of Washington in the late 1950s and early 1960s. He went on to become the first person of color elected to the Seattle City Council and the first Asian-American elected to public office in the Pacific Northwest.



The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.



Brionna Aho, Interim Communications Director, (360) 753-2727; brionna.aho@atg.wa.gov