For decades, U.S. religious right groups have portrayed equal rights for LGBT people as a threat to religious freedom. During the 1996 Congressional debate on the Defense of Marriage Act, Concerned Women for America falsely claimed that if same-sex marriages were legally recognized, conservative churches would be forced to marry gay couples. Of course, this claim is false: even though marriage equality is now legal, religious conservatives can still refuse to marry same-sex couples and preach that homosexuality is immoral. Sexual orientation and gender identity nondiscrimination laws can coexist with free exercise of religion.
Just because something is not true, however, doesn’t mean that it is not an effective political organizing strategy. And now that religious right anti-LGBT activists sit in key positions in the Trump administration, from Health and Human Services Office of Civil Rights Director Roger Severino all the way up to Vice President Mike Pence, they are implementing policies that restrict and reverse LGBT equality in the name of protecting religious freedom.
On May 2, in commemoration of National Prayer Day, the Trump Administration finalized a health care regulation that will “protect” the “statutory conscience rights” of health care providers. The rule grants federal nondiscrimination protection to health care providers who deny services to people who violate the providers’ sincerely held religious beliefs.
The rule asserts that there is “an environment of discrimination toward, and attempted coercion of, those who object to certain health care procedures based on religious beliefs or moral convictions,” and because the number of complaints filed with the Office of Civil Rights at the U.S. Department of Health and Human Services by religious conservatives has increased since November 2016.
Language in the final rule focuses on abortion, assisted suicide, and sterilization. But it is modelled on new religious refusal laws in 12 states that authorize the denial of services, including health care, to LGBT people. Potential conduct protected by the final rule could include a refusal to serve LGBT people or their children based on the belief that same-sex couples should not be allowed to marry or raise children, that people should not have sex outside of heterosexual marriage, and that gender identity should not differ from sex at birth.
This rule takes the concept of religious freedom and turns it on its head. True religious freedom protects an individual’s right to worship — or not — and harms no one. Given the recent attacks on Jewish, Christian, Muslim, and Sikh worshippers in the U.S. and around the world, we must do more to protect this fundamental human right to worship in peace and safety. But this rule does not do that.
The Trump religious discrimination rule could allow providers to deny screenings for sexually-transmitted infections to a gay or bisexual man, fertility treatment to a lesbian couple, or gender affirmation treatment to a transgender individual. Specific language protecting health care workers’ refusal to participate in sterilization could be used to deny gender-affirming care to transgender people.
The final rule calls for notices to be posted in health care settings stating to health care providers: “You may have a right under Federal law to decline to perform, assist in the performance of, refer for, undergo, or pay for certain health care‐related treatments, research, or services (such as abortion or assisted suicide, among others) that violate your conscience, religious beliefs, or moral convictions.”
The rule also threatens expanded HIV prevention efforts with gay and bisexual men and transgender women in Africa and elsewhere that have been supported by the U.S. President’s Emergency Plan for AIDS Relief over the past decade. It states that “recipients of foreign assistance funds for HIV/AIDS prevention, treatment, or care… cannot be required, as a condition of receiving such funds…to ‘endorse, utilize, make a referral to, become integrated with, or otherwise participate in any program or activity to which the organization has a religious or moral objection.’” This could mean that organizations working in the Global South could refuse to work with LGBT people, sex workers, people who use drugs, prisoners, migrant workers, and others who are at elevated risk of HIV infection and already extremely marginalized and vulnerable.
Health care is both a human and a civil right. Every law that governs access to health care should put patients first. This new rule does not do that. Anti-LGBT discrimination in health care correlates with poorer health and well-being for LGBT people and can cause LGBT people to not access health care. LGBT equality and compassionate, affirming care for LGBT people can coexist with religious freedom. To deny rights to LGBT people in the name of protecting the right of religious conservatives is immoral and is bad public health policy.
Sean Cahill, PhD, is Director of Health Policy Research at the Fenway Institute at Fenway Health.