I’m Sorry, Sir, We Will Not Perform Your Hysterectomy: Religious Hospitals’ Refusal to Treat Trans* People by Carly Calhoun

I’m Sorry, Sir, We Will Not Perform Your Hysterectomy: Religious Hospitals’ Refusal to Treat Trans* People

by

Carly Calhoun

 

In 2015, a transwoman sought surgical care prescribed by her doctor to ameliorate complications of a breast augmentation she underwent years’ prior.[1] The hospital refused to allow the surgery despite coverage from her insurance provider.[2] At first the hospital said it “does not have a policy on assisting with gender transition,” but after rumors came out that the policy was due to “conservative Catholic officials affiliated with [the hospital],” it referenced the fact that as a Catholic hospital it must adhere to the Ethical and Religious Directives of the Catholic Church (ERDs).[3] While religious hospitals and care providers are not the only places trans people experience discrimination in healthcare,[4] these facilities continue to cite religious freedom to violate numerous laws including the Affordable Care Act (ACA).

Many of these hospitals allow cisgender people to receive procedures denied to trans people. For example, a transwoman called the above hospital in question to get a consultation on breast augmentation and was told they accepted new patients, but when they learned she was trans they denied her an appointment.[5] The World Professional Association for Transgender Health (WPATH) recognizes that gender affirming surgeries constitute “medically necessary care” under most insurance plans.[6] It would logically follow that both surgeries for ciswomen and transwomen should be allowed in all hospitals. This is not necessarily the case.

Only seventeen states have public accommodations laws prohibiting discrimination based on gender identity,[7] while only fourteen states specifically prohibit medical providers from discriminating based on gender identity.[8] Fortunately, the Affordable Care Act (ACA) bans discrimination in certain healthcare services on the same bases as those prohibited under other federal civil rights legislation.[9] Under section 1557 of the ACA, healthcare providers receiving federal subsidies, credits, or contracts of insurance shall not discriminate “on the basis of race, color, national origin, sex, disability, or age.”[10] And HHS’s Office for Civil Rights (OCR) which enforces the ACA, proposed new rules barring discrimination based on gender identity specifically (even though it already enforces the rules against those discriminating against trans people “based on sex”).[11] Many Catholic hospitals receive Medicare or Medicaid reimbursement and other federal subsidies, therefore falling under this antidiscrimination provision of the ACA. In Rumble v. Fairview Health Services, the federal district court of Minnesota held that a hospital was subject to the ACA’s antidiscrimination provision when it mistreated a young transman because it received federal funding through Medicare and Medicaid contracts.[12] This is consistent with other federal court decisions based on discrimination under title VI and section 504 of the Rehabilitation act that Medicare and Medicaid funds constitute federal financial assistance.[13]

Unfortunately, religious hospitals argue that allowing performance of certain procedures on trans people violates their First Amendment right to freedom of religion.[14] To what extent the federal Religious Freedom Reformation Act (RFRA) allows an exception to this discrimination is unclear. But the ACA’s text only provides a “conscience” exemption for abortions[15] and the Hobby Lobby decision applies to birth control coverage from employers.[16] Neither of these rules seem to apply to a hospital’s refusal to perform surgeries on one population that it will not perform on another, which is what section 1557 prohibits.[17] But the fact that a great (and growing) number of hospitals in the U.S. are run by or affiliated with the Catholic church amplifies this issue, [18] especially when the only accessible care is at a private religious hospital.[19] Unfortunately, to prove that a private hospital is “quasi-public” institution acting under the color of the state is very hard[20] and actions against private hospitals in this regard may easily fail.[21]

These hospitals and systems not only deny life affirming surgeries, but considering the rate of suicide and violence against trans people,[22] they deny life-saving surgeries. Trans people have better health outcomes when they feel more comfortable in their own skin.[23] Further, many states require some form of surgery in order for a person to correct the gender marker on their state identification documents.[24] When many trans people do not need surgery to “pass” as the gender with which they identify, it causes confusion and many times harassment or worse from others who do not understand why the gender marker on his or her ID does not match the person with whom they are interacting. Not all trans people want or need gender affirming surgery, but a hospital should respect the decisions of doctors and even health insurance companies that deem some surgeries as medically necessary for certain individuals. Freedom of religion must only be allowed to go as far as private activity. By participating in the market and offering services to the public, these religious hospitals must offer services to eve

[1] Lou Chibbaro, Jr., Georgetown Hospital Accused of Anti-Trans Discrimination, Wash. Blade (June 9, 2015), http://www.washingtonblade.com/2015/06/09/georgetown-hospital-accused-of-anti-trans-discrimination/.

[2] Id.

[3] Id. See also U.S. Conf. of Cath. Bishops, Ethical and Religious Directives for Catholic Health Care Services, (5th Ed. 2009), available at http://www.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition-2009.pdf (last visited Mar. 6, 2016).

[4] Tari Hanneman, Healthcare Equality Index 2014: Promoting Equitable and Inclusive Care for Lesbian, Gay, Bisexual and Transgender Patients and Their Families, 4 Hum. Rts. Campaign Found. (2014), available at http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/HEI_2014_high_interactive.pdf#__utma=149406063.1385 (“70% of transgender or gender non-conforming patients surveyed have experienced some type of discrimination in healthcare”).

[5] Chibbaro, Jr., supra note 1.

[6] Stephen Whittle et al., WPATH Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage for Transgender and Transsexual People Worldwide, World Prof’l Ass’n for Transgender Health (June 17, 2008), http://www.wpath.org/site_page.cfm?pk_association_webpage_menu=1352&pk_association_webpage=3947.

[7] Maps of State Laws & Policies, Hum. Rts. Campaign, http://www.hrc.org/state_maps (last visited Mar. 6, 2016).

[8] Laws Prohibiting Discrimination Against Gays and Lesbians FAQ, NOLO, http://www.nolo.com/legal-encyclopedia/laws-prohibiting-discrimination-against-gays-faq-32295.html (last visited Mar. 6, 2016).

[9] ACA 42 U.S.C. § 18116 (2010) (“Except as otherwise provided for in this title . . . an individual shall not, on the ground prohibited under title VI . . . title XI . . . the Age Discrimination Act . . . or section 504 of the Rehabilitation Act . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments)”).

[10] U.S. Dep’t of Health and Hum. Serv., OCR Enforcement under Section 1557 of the Affordable Care Act Sex Discrimination Cases, HHS.Gov, http://www.hhs.gov/civil-rights/for-individuals/section-1557/ocr-enforcement-section-1557-aca-sex-discrimination/index.html (last visited May 2, 2016).

[11] See U.S. Dep’t of Health and Hum. Serv., HHS Takes Next Step in Advancing Health Equity Through the Affordable Care Act, HHS.Gov (Sept. 3, 2015), http://www.hhs.gov/about/news/2015/09/03/hhs-takes-next-step-advancing-health-equity-through-affordable-care-act.html.

[12] Rumble v. Fairview Health Servs., No. 14-CV-2037 SRN/FLN, 2015 WL 1197415, at *1, *14 (D. Minn. Mar. 16, 2015).

[13] See e.g., United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1042 (5th Cir. 1984), U.S. v. Cabrini Med. Ctr., 639 F.2d 144, 151 (2d Cr. 1984), Bob Jones Univ. v. Johnson, 396 F. Supp. 597, 603 n.21 (D.S.C. 1974), aff’d by 529 F.2d 514 (4th Cir. 1975), and Valentine v. Smith, 654 F.2d 503, 512 (8th Cir. 1981).

[14] See No Catholic Right to Transgender Surgery, Catalyst (Mar. 2008), http://www.catholicleague.org/no-catholic-right-to-transgender-surgery/.

[15] ACA 42 U.S.C. § 18023 (2010).

[16] Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).

[17] See U.S. Dep’t of Health and Hum. Servs., supra note 11.

[18] Nina Martin, The Growth of Catholic Hospitals, By the Numbers, ProPublica (Dec. 18, 2013), https://www.propublica.org/article/the-growth-of-catholic-hospitals-by-the-numbers.

[19] See John Geyman, Catholic Hospital Systems: A Growing Threat to Access to Reproductive Services, The Official Blog of Physicians for a Nat’l Health Program (Mar. 24, 2014), http://pnhp.org/blog/2014/03/24/catholic-hospital-systems-a-growing-threat-to-access-to-reproductive-services/.

[20] Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982) (there must be either (1) “a sufficiently close nexus between the State and the challenged action of the regulated entity,” (2) the State must have “exercised coercive power or provided significant encouragement” so that entity’s actions are seen as a decision of the State, or (3) “the required nexus may be present if the private entity has exercised powers that are traditionally the exclusive prerogative of the State”).

[21] See e.g., Estes v. Kapiolani Women’s and Children’s Med. Ctr., 787 P.2d 216 (Hawai’I Feb. 20 1990) (holding that because the state did not direct, encourage, or support the hospital’s policies and because there was no sufficient nexus between the hospital’s policy and its funding from the state it was not quasi-public), and Grossling v. Ford Mem’l Hosp., 614 F.Supp. 1051, 1057-58 (E.D. Tex. 1985) (holding a hospital was not a quasi-public institution because there was no nexus between regulations imposed by the state and the hospital’s action, there was no coercive power for the hospital to act the way it did, and hospitals are not traditionally operated by the state).

[22] See Ann P. Haas et al., Suicide Attempts among Transgender and Gender Non-Conforming Adults: Findings of the National Transgender Discrimination Survey, 2 Am. Found. For Suicide Prevention & The Williams Inst. (Jan. 2014), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/AFSP-Williams-Suicide-Report-Final.pdf (showing that 42 percent of trans women and 46 percent of trans men have attempted suicide).

[23] Dean Spade, Documenting Gender, 59 Hastings L.J. 731, 757 (Mar. 2008), see also WPATH.

[24] See Know Your Rights: FAQ About Identity Documents, Lambda Legal, http://www.lambdalegal.org/know-your-rights/transgender/identity-document-faq (last visited Mar. 6, 2016).

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