Imagine being denied a prescription for Truvada as PrEP because your doctor disapproves of your sex life. Or being denied hormones or a hysterectomy for gender transition by a doctor who provides them for other purposes. Or being refused dental care for your child because the dentist won’t treat a kid with two moms.
All these scenarios are possible — and even enabled and, some might say, encouraged — by new moves at the Department of Health and Human Services to protect health care providers’ “religious freedom,” creating what civil rights advocates say is really a license to discriminate against LGBT people, women seeking abortions or contraceptives, and anyone else who offends a provider’s beliefs.
“The Trump administration has attempted to promote discrimination at every turn against many groups of Americans, particularly LGBT people,” says Harper Jean Tobin, director of policy for the National Center for Transgender Equality.
In health care, the administration is using two means of promoting discrimination. On January 18, HHS announced the formation of a Division of Conscience and Religious Freedom within its Office of Civil Rights. “The creation of the new division will provide HHS with the focus it needs to more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom, the first freedom protected in the Bill of Rights,” says a press release announcing the move. The web page for the new division provides guidelines for health care providers who wish to file complaints if they believe they’ve been forced to participate in a procedure that goes against their religious beliefs.
The next day, HHS unveiled a proposed rule outlining how it will enforce so-called conscience protections and providing for penalties against institutions that it finds to have violated employees’ religious freedom. The rule is subject to a 60-day public comment period before HHS makes a decision on putting it into effect.
That all may sound innocuous enough. There is no law saying all doctors or hospitals must offer certain procedures, such as abortion or gender-affirmation surgery, that might raise religious objections. Indeed, there is a scarcity of providers for these procedures. No one would expect, for instance, a Catholic hospital to provide abortions, or a physician who believes the procedure is murder to perform one.
But the moves by HHS are dangerous, according to civil rights activists, because the definition of “participating” in a procedure is very broad, as is its interpretation of laws such as the federal Religious Freedom Restoration Act, passed in 1993. And many staffers who have come to HHS during Donald Trump’s presidency, such as Office for Civil Rights chief Roger Severino, have a record of hostility to LGBT rights and reproductive freedom.
The proposed rule purports to enforce existing laws, but in reality it “goes well beyond” them to “create sweeping, dangerous exemptions that would encourage health care providers to pick and choose which patients they will and won’t treat,” says Mara Keisling, executive director of NCTE. This particularly poses a risk to trans people, who are already denied care at an alarming rate, she adds.
“We look at these rules — they are just breathtakingly broad,” adds Susan Berke Fogel, director of reproductive health at the National Health Law Program. “It virtually allows anyone even remotely involved in health care to refuse to do anything to which they claim any kind of religious objection. The rules redefine basic words like ‘refer’ or ‘participate,’ and they really are a call-out to encourage discrimination instead of lifting up our civil rights laws.”
Scheduling an appointment or transferring a phone call could be considered participating in a procedure, activists say. For instance, a health care worker could refuse to schedule an appointment for an ultrasound for a pregnant woman to confirm fetal abnormalities if the worker had a religious objection to abortion and feared that the confirmation would lead the woman to terminate the pregnancy, says Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center.
The possibilities go even further. “If you think about this, could an aide refuse to serve lunch to a patient having a service to which that aide has an objection?” Fogel says. “Could the person at the visitors’ desk refuse to give you a badge to go visit someone because they object to the service that person who’s in the hospital has received?”
For transgender people, a provider could refuse certain services they perform for others. In a case cited extensively in the proposed HHS rule, a Catholic hospital had scheduled a hysterectomy for a transgender man, and his surgeon was willing to perform it. But after the patient mentioned his gender identity to a nurse, she informed hospital administrators, and the procedure was canceled. The same surgeon ended up performing the hysterectomy at a different hospital, and the patient has sued the hospital that denied him care. But under to the new rule, such discrimination would have the blessing of the federal government.
The rule could also allow discrimination against trans people for hormone therapy as well as surgery, along with services having nothing to do with their gender transition, according to civil rights activists. Some providers even “want to be able to refuse to recognize a transgender person for who they are,” adds Sarah Warbelow, legal director at the Human Rights Campaign. “That’s a really scary situation for a trans person.”
Trans people already have difficulty getting health care, transition-related or otherwise. In major surveys of transgender Americans, about one-third of respondents have reported being refused health care, and some have put off needed care out of fear of discrimination. And trans people and LGBT people in general who live outside major metropolitan areas have difficulty finding an alternative health care provider if they’re turned away by one.
Indeed, others within the LGBT acronym would suffer under the new rule. In the past few years, many gay and bisexual men have begun taking Truvada, an anti-HIV drug, as pre-exposure prophylaxis, a.k.a. PrEP, to prevent infection with HIV if they’re exposed to the virus during sex. Warbelow says she envisions doctors refusing to prescribe Truvada for PrEP because they believe it promotes promiscuity.
That’s bad not just for the patient seeking PrEP but for everyone, she says. “People all along the spectrum benefit from the utilization of PrEP,” she says. “It is the path to an AIDS-free generation.”
Another area where she predicts expanded discrimination is fertility treatments, with providers citing religious objections in refusing to help single people or same-sex couples have children. Such discrimination has occurred over the years, but again, under the new HHS rule it would have the approval of the federal government, and the definition of participating in a procedure would be greatly broadened.
Family members would suffer too. Julie Kruse, federal policy advocate at the Family Equality Council, a group representing LGBT parents and their children, notes the case of a child in Texas refused emergency care by a pediatric dentist because the child had two mothers. She also mentions a lesbian couple in Mississippi who couldn’t find a midwife or child care. As HHS covers child welfare services as well as health care, there’s the possibility of discrimination against LGBT young people in foster care, those who need suicide prevention services, and more.
“This is just going to embolden people to steer not only LGBTQ people but our families away,” she says.
The moves by HHS appear to be doing so. The Division of Conscience and Religious Freedom, set up to handle complaints from workers who say they’ve been forced to participate in procedures despite their religious or conscientious objections, appears to be encouraging such complaints. More than 300 workers have filed such complaints over the past month, The Hill reported this week, compared to 34 in the period from Trump’s election in November 2016 and the opening of the office, a period when the Office of Civil Rights was still focused on enforcing privacy and antidiscrimination laws. The rate of complaints between 2008 and 2016 was even lower, about 1.25 per year.
“We’ve announced to the world that we’re open for business and the public is responding,” Severino said in a statement to The Hill. Severino has a history of opposition to LGBT rights, including marriage equality and transition-related care for transgender people. While he’s in charge of the Office of Civil Rights overall, there will be someone appointed to head the new division, but that person has not been selected yet, an HHS spokesperson tells The Advocate. This person but will be drawn from senior career employees, the spokesperson said, indicating it will not be a political appointment. Many of the political appointees at HHS under Trump have been drawn from the religious right.
Despite all this bad news, there are things people can to fight back rather than just wait for a new administration. Everyone with concerns about the new rule should go to the Federal Register and leave comments, even though the Trump administration has a pattern of ignoring comments that don’t support its position. But career HHS employees will likely take notice. “We do believe that public comment matters,” Tobin says. Keisling adds, “We really want to flood [the website] with really good information.”
After the comment period, HHS can finalize the rule as is or with changes, or choose not to adopt it. If it is finalized, it will almost certainly be challenged in court, according to Tobin. That’s why it’s important, various activists said, to document cases of discrimination and seek counsel from the many legal groups that take on LGBT rights cases. “It’s going to cause a lot of people to be sued,” Keisling says.
They also suggest contacting members of Congress with concerns. “There are definitely folks in Congress that are watching,” Kruse says. This is, she adds, anything but the time for inaction. “We’re really talking life and death here,” she says.