During the Obama administration, I was the director of the Office for Civil Rights at the Department of Health and Human Services in Washington, D.C. There, I was privileged to spearhead the issuance of regulations implementing Section 1557 of the Affordable Care Act, the groundbreaking civil rights provision that — among other things — was the first federal law to prohibit sex discrimination in health care.
While I was at OCR, we also enforced laws that allow medical providers to refuse to perform abortions and certain other carefully specified procedures where those procedures violate the providers’ religious beliefs. In doing so, we adhered to the respect the law affords to religious liberty while also recognizing the critical mission of OCR and HHS to enhance access to medical care and coverage.
In the Trump administration, OCR is poised to upset that careful balance in ways that could significantly endanger patient health and well-being, including for LGBT individuals. OCR has created a new division devoted exclusively to defending the rights of religious providers to deny health care and has issued a proposed rule that seems likely, if finalized, to substantially expand those denials.
Here are five ways OCR’s actions could affect LGBT people:
- OCR is prioritizing refusals to provide care over other civil rights. The new division will reallocate resources from enforcement of laws protecting civil rights — including prohibitions on discrimination based on sex stereotyping and gender identity — and the privacy and security of health information. This is particularly disturbing because OCR receives thousands of complaints every year about violations of the civil rights laws while receiving only a handful — 34 at last count — of allegations of infringement of religious beliefs. To make matters worse, the Trump administration’s proposed 2019 budget would eliminate five staff from the OCR and reduce the department’s budget by $8 million, making limited resources for civil rights violations even more stretched.
- OCR is proposing to expand the denials of care it will defend. OCR’s proposal significantly expands the actions providers can refuse to take on religious grounds. OCR would also expand the ways in which it can penalize entities that require the provision of health care that violates a provider’s religious beliefs.
- OCR is putting the health of vulnerable communities at risk. There is little in the proposed rule to suggest that OCR will consider the impact on patients’ health when doctors and other medical professionals refuse to provide care. But that impact can be extreme. Under the proposed rule, for example, OCR might try to defend a pediatrician who refused to treat the child of a same-sex couple because the doctor objected to the parents’ sexual orientation.
- The trans community is at particular risk. Some providers have objected to providing gender transition care on religious or moral grounds, and some even claim that gender transition can amount to sterilization, which providers have a particular right to deny.
- The fear of being turned away will likely lead LGBT patients to avoid seeking medical care. We know from our research how damaging it is when LGBT individuals are denied services. The fear of being rejected can lead LGBT patients to avoid seeking necessary care and can impose additional psychological stress.
It’s of course important to strike a careful balance between religious liberty interests and civil rights — both are fundamental principles that underlie our democracy. But OCR’s proposed rule appears to dispense with that balancing altogether and instead to create far-reaching and potentially dangerous safe harbors for the discriminatory denial of care.
This is not the end of the story, however. The proposed rule is open for public comment until March 27 and OCR is obligated to consider and respond to the comments it receives. This is the public’s opportunity to let OCR know the harms the proposed rule could cause.
Let’s tell OCR that it can’t jeopardize the health and well-being of the LGBT community, not to mention critical reproductive health care for women, in this way. The health of vulnerable communities – as well as the health of our civil rights laws — demands no less.
JOCELYN SAMUELS is the executive director of the Williams Institute, a think tank at UCLA Law dedicated to conducting rigorous, independent research on sexual orientation and gender identity law and public policy.