Amicus Brief

Fulcher v. Secretary of Veterans Affairs: Amicus Brief

June 2017

The U.S. Court of Appeals for the Federal Circuit addresses whether the U.S. Department of Veterans Affairs’ rule that excludes coverage of gender-affirming surgery for transgender veterans violates the constitution.

  • Adam P. Romero
    Legal Scholarship & Federal Policy Director, Former
  • Jocelyn Samuels
    Executive Director

Transgender veterans brought suit against the U.S. Department of Veterans Affairs for denying them health care coverage for gender-confirmation surgery. The veterans argued that the exclusion violated their equal protection rights under the Fifth Amendment.

The U.S. Department of Veterans Affairs policy denies medically necessary care to transgender veterans who seek gender-confirmation surgery. There are an estimated 134,300 transgender veterans and retired National Guard or reservists in the U.S., along with 15,500 transgender people on active duty or in the National Guard or Reserve forces. Reversal of the policy would ensure that these transgender people have access to gender-affirming care.

The brief presents social science data and research to establish that transgender status should be considered a suspect classification for purposes of equal protection analysis under the constitution. The brief documents a long history of discrimination against transgender people in state and federal law, the justice system, employment, housing, and other vital areas of life. The brief further establishes that being transgender bears no relationship to an individual’s ability to contribute to society, transgender people lack political power, and the transgender population is a discrete minority group. Therefore, all four factors weigh in favor of the court applying heightened scrutiny when reviewing the policy.

Download the amicus brief

Fulcher v. Secretary of Veterans Affairs: Amicus Brief