The Department of Health and Human Services (HHS) issued a final rule earlier this week expanding health care workers’ ability to refuse services on religious grounds. A number of LGBTQ advocates and health care experts have warned the measure could have a negative impact on the lesbian, gay, bisexual, transgender and queer community.
The rule, Protecting Statutory Conscience Rights in Health Care, revises existing HHS regulations to ensure “vigorous enforcement of Federal conscience and anti-discrimination laws” and strengthens health care workers rights so they are “free from coercion or discrimination” on account of their “religious beliefs or moral convictions.”
The measure, first proposed over a year ago, “fulfills President Trump’s promise to promote and protect the fundamental and unalienable rights of conscience and religious liberty,” according to a statement issued by the HHS.
“This final rule replaces a 2011 rule that has proven inadequate, and ensures that HHS implements the full set of tools appropriate for enforcing the conscience protections passed by Congress,” the statement continued. “These federal laws protect providers, individuals, and other health care entities from having to provide, participate in, pay for, provide coverage of, or refer for, services such as abortion, sterilization, or assisted suicide.”
The rule change is the latest move to advance religious freedom at the Department of Health and Human Services. In January 2018, HHS announced the creation of a religious freedom division that would defend health care providers who refused care on the basis of their religious or moral beliefs.
Jocelyn Samuels, executive director of UCLA’s Williams Institute, a think tank focused on LGBTQ issues, and the former director of HHS’ Office of Civil Rights under the Obama administration, told NBC News the new rule “stands to inflict significant damage on vulnerable communities.”
“Most directly, of course, on those seeking reproductive health care, but also the LGBTQ community more generally,” Samuels said.
Indeed, LGBTQ and civil rights advocates, as well as the Democratic party, slammed the rule change. A spokesperson for the Democratic National Committee called the new measure a “license to discriminate” against the “most vulnerable among us,” and LGBTQ legal group Lambda Legal called the rule “a government-sanctioned attack on LGBTQ people and on women.”
“LGBTQ people, and especially transgender people, already suffer disproportionate levels of discrimination in health care settings,” Lambda Legal CEO Richard Burns said in a statement. “HHS should be in the business of making sure people get the health care they need, not trying to grant health care workers and institutions permission to turn people away.”
Samuels said the Trump administration has dismissed “reams of evidence” about the extensive discrimination that has occurred specifically against LGBT people in health care and the resulting health disparities.”
Research shows LGBTQ patients — particularly transgender individuals —face hurdles to receiving appropriate care, and are already at risk of experiencing discrimination.
A 2017 report by the liberal Center for American Progress found 8 percent of lesbian, gay and bisexual people, and 29 percent of trans people reported that a provider had refused to see them because of their sexual orientation or gender identity in the previous year. Over that same period, 9 percent of lesbian, gay and bisexual people, and 21 percent of trans respondents said a provider had used harsh or abusive language when they sought medical care.
Center for American Progress also obtained information on complaints made to the HHS between 2012 and 2016 because of discrimination on the basis of sexual orientation, gender identity or sex stereotyping. The organization found that common complaints included being denied care or insurance coverage because of gender identity or transgender status.
“In an attempt to justify more discrimination against transgender people, HHS minimizes the very real pain religious-based refusals by providers have caused transgender people,” Gillian Branstetter, a spokesperson for the National Center for Transgender Equality, told NBC News.
She cited three separate cases, two in California and one in New Jersey, where transgender men were denied hysterectomies by religiously affiliated hospitals. In one case, 29-year-old Oliver Knight had completed surgery prep and was set to undergo the procedure when at the last minute the hospital staff informed him that he did “not meet” the hospital’s “parameters for a sterilization.”
“We’re confident this rule will make the lives of transgender people across this country harder,” Branstetter said. “No one should have to check the religious affiliation of a hospital in order to make sure they can get the care their doctors have prescribed them. Religious liberty is a bedrock principle for all Americans — including transgender people — but this regulation is a perversion of that principle.”
“OPTIONS FOR EVERYONE”
Roger Severino, the director of HHS’ Office for Civil Rights, defended the new rule, saying it “does not create new substantive rights,” rather it “gives life and enforcement tools to existing federal conscience protections that have been on the books for decades.”
“We have not seen the hypotheticals that some have used to criticize the rule actually develop in real life,” he told NBC News in an email. “The beauty of the American system is that there are options for everyone. This rule promotes that principle by ensuring greater diversity in health care so that patients can continue to find doctors who match their values, and for example, OBGYNs are not excluded from the practice of medicine simply because they stand on the side of defending unborn human life.”
Severino’s appointment to lead HHS’ Office for Civil Rights garnered harsh criticism from Democrats and LGBTQ advocates. In his former capacity as director of the DeVos Center for Religion and Civil Society at the Heritage Foundation, he co-authored a 2016 report in which he called for the repeal of the Affordable Care Act (ACA) and opposed the interpretation of Section 1557 of the ACA to include gender identity.
In his 2016 report, Severino claimed the Office of Civil Rights’ interpretation of Section 1557 to include gender stereotyping and gender identity confers “special privileges” and violates the “religious liberty and freedom of conscience” of health care providers.
This latest rule is the first of two that LGBTQ and civil rights activists have been anticipating. HHS will also be putting forward a proposed rule regarding Section 1557 of the Affordable Care Act, the section that bans discrimination on the basis of race, color, national origin, sex, age and disability in federally funded health care.
In 2016, the Obama administration adopted a rule that clarified that sex discrimination, prohibited by Section 1557, encompasses discrimination on the basis of gender identity. As such, Section 1557 provides anti-discrimination protections to transgender patients.
After the regulation was adopted, but before it could be enforced, eight states, a religious hospital network and an association of Christian health care professionals sued HHS over the rule, claiming it would “require Plaintiffs to perform and provide insurance coverage for gender transitions and abortions contrary to their religious beliefs and medical judgment. Since then, the case has been held up in court before a judge known to be unsympathetic to the Affordable Care Act. The Trump administration has signaled it agrees with the plaintiffs and would be issuing a new rule.
Samuels said the expectation is that the new rule will “remove those provisions adopted by [the Obama] administration that gender identity is a form sex discrimination that is barred under the statute.”
While this week’s rule change could harm LGBTQ patients, Samuels warned, a change to the rule governing Section 1557 would be even more significant. Eliminating nondiscrimination based on gender identity could mean “no provider has to offer any form of care to trans people to comply with federal law. A cardiologist could refuse to treat a trans person for a heart attack, and that patient would have no recourse under federal law,” Samuels claimed.
The Supreme Court is set to weigh in on the scope of sex discrimination in its next term as it relates to LGBTQ workers’ rights. The court’s decision could have implications that reach beyond the workplace.