Decision 9C_269/2022 dated 31 January 2023
31 mars 2023 – The appellant A. is compulsorily insured with Sanitas Grundversicherungen AG (Sanitas). Due to gender dysphoria in the sense of male-to-female transsexuality, A. underwent a gender reassignment surgery with consecutive surgeries in the following years. In particular, A. underwent a bullhorn lip-lift as part of the completion of the feminisation of the face, for which Sanitas refused to reimburse the costs under compulsory health insurance (obligatorische Krankenpflegeversicherung, OKP). A. appealed against this decision.
The court first states that the aim of a surgical intervention in the context of gender dysphoria is to give the trans person the external appearance of their new gender. Regarding the reimbursement of costs, it is further stated that an obligation to pay benefits under the OKP for a surgical adjustment is out of the question if the appearance of a secondary sexual characteristic (this includes sexual characteristics that give the individual a female or male appearance but only appear during puberty) or a physical peculiarity is not (any longer) to be qualified as typically belonging to the original sex or not (any longer) as incompatible with the desired new sex. This assessment must also be made from an objective point of view.
Having said this, A.'s objection that the distance between the nose and lips (philtrum length) was a secondary sexual characteristic was dismissed as too short-sighted. Furthermore, the court ruled that the length of the philtrum (shortened in this case by means of a bullhorn lip-lift) did not indicate a typically male appearance or an appearance that was incompatible with a female appearance. The fact that A.'s facial features are more prominent overall than is perhaps the case with certain other women does not change this. This is because the appearance of secondary sexual characteristics (and physical features) can also show a high degree of variability within the same sex, and the ranges of appearance in men and women can overlap. A.'s other claims were also dismissed as unfounded.