A federal judge this week heard oral arguments in the case of “Jane Doe,” a Philadelphia trans woman who alleges anti-trans bias on the part of Independence Blue Cross when denying her request for facial feminization surgery.
Doe, who works for a local law firm, filed her lawsuit on April 20, 2023. It’s been assigned to U.S. District Judge Timothy J. Savage of the Eastern District of Pennsylvania. A jury trial has been requested.
Facial feminization surgery encompasses a broad range of procedures to change the shape of the face to look feminine. Examples include having the hairline lowered to create a smaller forehead, cheek implants, tracheal shave, rhinoplasty, lip lift, jaw and mandible contouring, brow lift, hair removal and hair transplants.
Blue Cross wants Savage to toss out Doe’s case as meritless. Doe wants her day in court. On Nov. 6, Savage heard oral arguments on the dispute.
Heather R. Olson, an attorney for Blue Cross, denied the insurance carrier treated Doe in a biased manner. Olson said Doe failed to demonstrate that her requested coverage wasn’t merely for cosmetic purposes. Just because Doe disagrees with the denial of her request for coverage doesn’t mean she’s the victim of discrimination, Olson added.
Justin F. Robinette, an attorney for Doe, emphasized that Doe needed the coverage to treat her gender dysphoria. He said Blue Cross denied Doe’s request on the basis that Doe’s facial features fell within the “normal” range for a female face.
“My client was told [by Blue Cross] that she looks female enough,” Robinette told Savage. “That’s gender stereotyping.”
Moreover, Robinette told the judge that Blue Cross representatives repeatedly misgendered Doe when she requested the coverage and when she appealed the denials.
On June 7, 2021, Blue Cross issued a final determination, denying Doe coverage for facial feminization surgery. Blue Cross said Doe “did not demonstrate a facial appearance outside the broad range of normal for the female gender,” according to court papers.
Robinette told Savage that Blue Cross violated federal antibias laws when denying Doe the requested coverage. He said Doe ended up paying for the procedures out of her own pocket, but she wants Blue Cross to reimburse her.
Olson emphasized Blue Cross doesn’t discriminate on the basis of gender identity. Olson also said Blue Cross never discriminated against Doe. Olson said Blue Cross has a policy regarding facial feminization procedures that’s applied equitably to everyone, regardless of gender identity.
Savage said perhaps Blue Cross should focus more on a person’s internal gender identity rather than their external gender expression. Just because society may view a trans person as passable doesn’t mean the trans person’s external appearance is compatible with their internal sense of their gender identity, the judge opined.
Moreover, Savage ordered Blue Cross to ensure the availability of two key Blue Cross representatives for Robinette to take their depositions. Savage also ordered Robinette to ensure the availability of Doe for Blue Cross to take her deposition. Federal rules permit Doe to be deposed for up to seven hours.
According to court papers, Doe was forced to expend large sums of money to undergo various facial-feminization procedures without being covered by Blue Cross, amounting to a cost of $86,618.50. Moreover, Robinette said legal expenses for Doe’s litigation have exceeded $50,000, which he wants Blue Cross to cover.
Doe is suing Blue Cross for sex discrimination and breach of contract. Additionally, Doe wants Savage to order Blue Cross to provide facial feminization procedures for trans individuals with gender dysphoria. Doe also wants Savage to order Blue Cross to hold trans-related sensitivity training for its workers.
Savage appeared sympathetic to Doe’s claims. He commended Robinette for being a passionate advocate for the LGBTQ+ community. But he warned Robinette that he might have to dismiss some aspects of Doe’s case.
“I may not like some laws, ut I have a duty to follow them,” Savage told Robinette. “Some laws may go your way. Some may not.”
Doe didn’t attend the Nov. 6 court proceeding. In court papers, she said: “I just want a body that enables me to engage and function in society. I don’t want to be singled out or noticed.”
Both sides have engaged in contentious legal wrangling. Before concluding the 70-minute court proceeding, Savage said: “Can we be nice to each other? Let’s get this done.”
A decision from Savage regarding Blue Cross’ request to dismiss Doe’s case is expected within the next several weeks.
After the hearing, Blue Cross issued this statement: “[W]e cannot comment on pending litigation. For context, [the Nov. 6] hearing was a preliminary proceeding. It was not the appropriate forum for Independence to dispute the factual inaccuracies in the complaint. Our core mission is to enhance the health and well-being of the people and communities we serve. While we can’t comment on this case, what we would emphasize is that we serve all people, regardless of sexual orientation or gender identity. Equitable care and protections against discrimination based on sexual orientation or gender identification are written into our medical policies and required by law. Our policies for gender affirming care also take into consideration the standards published by the World Professional Association for Transgender Health (WPATH). WPATH has recently published new recommendations and we are currently reviewing our medical policy in consideration of these recommendations.”
Robinette issued this statement: “We are confident this case will move forward. Independence Blue Cross widely discriminates against the trans community. We are hopeful this lawsuit will reverse that course.”