On Tuesday, U.S. District Judge Reed O’Connor of the Northern District of Texas overturned the Affordable Care Act’s explicit prohibition of gender identity discrimination. Significantly, Judge O’Connor ruled that the gender identity nondiscrimination regulation put in place by the Obama Administration in 2016 violates the Religious Freedom Restoration Act (RFRA).
“Treating transgender patients in a nondiscriminatory manner, with compassion and respect, does not violate religious freedom,” said Sean Cahill, Director of Health Policy Research at The Fenway Institute. “This overly broad ruling threatens the ability of transgender people to access health care and will exacerbate discrimination in America. In health care settings, it certainly violates the oath to ‘first, do no harm.’”
In 2016, the Obama Administration released a final rule implementing the nondiscrimination provision of the 2010 Affordable Care Act. This final rule explicitly prohibited discrimination on the basis of gender identity in health care facilities and programs receiving federal funding. (The rule also prohibited some forms of anti-gay discrimination that constitute sex stereotyping.) This was a necessary and critical step forward in recognizing and addressing anti-transgender discrimination in health care. This rule was almost immediately challenged by a group of Christian health care providers called the Franciscan Alliance. In late 2016, Judge O’Connor sided with the Franciscan Alliance and issued a nationwide injunction against enforcing the final rule.
While the Obama Administration initially defended the rule in court, the Trump Administration chose not to defend the rule, and asked that the court allow the Department of Health and Human Services (HHS) to rewrite the rule instead. Since then, HHS has released a proposed rule that would remove the explicit gender identity nondiscrimination provision from the Affordable Care Act final rule. The proposed rule would also remove explicit gender identity and sexual orientation nondiscrimination provisions from several other health care regulations governing Medicaid, private health insurance, and the Program of All-Inclusive Care for the Elderly.
Judge O’Connor ruled that the explicit protection for transgender people in the Affordable Care Act rule is unconstitutional because it violates the religious freedom of the Franciscan Alliance. While this ruling is likely to be appealed, this decision will bolster the Trump Administration’s attempts to finalize its proposed rule as is. The proposed rule cites the Franciscan Alliance lawsuit and injunction as a major reason why the removal of explicit gender identity and sexual orientation nondiscrimination provisions is “necessary.” Furthermore, the Trump Administration has repeatedly shown its support for broad religious freedom legislation and policies that could allow for anti-LGBT discrimination under the guise of religious freedom (see Background, below). Judge O’Connor’s ruling that explicit transgender nondiscrimination provisions violate religious freedom could reaffirm the Trump Administration’s use of religious freedom to codify discrimination.
Overall, this ruling will be harmful to LGBT people, and especially transgender people. LGBT people already face widespread discrimination in health care, such as being verbally or physically harassed or being denied treatment altogether.[1] This discrimination acts as a barrier to seeking necessary routine, preventive care as well as emergency care. For example, the 2015 U.S. Transgender Survey of nearly 28,000 transgender people found that in the last year, 33% of respondents had experienced anti-transgender discrimination in health care, and 23% of respondents chose to forego necessary health care due to fear of discrimination.[2]
Background
The religious right has long framed its opposition to LGBT equality as an expression of religious freedom,[3] and framed pro-LGBT policy and cultural changes as a threat to conservatives’ freedom of religion.[4] Since religious conservatives’ U.S. Supreme Court victory in Burwell v. Hobby Lobby Stores, Inc. (2014)—upholding a company’s refusal to cover contraception in an employee health plan[5]—and the two pro-same-sex marriage Supreme Court rulings in 2013[6] and 2015,[7] religious conservatives have introduced a slew of state and federal bills that frame refusal to serve LGBT people and/or same-sex couples as the Constitutionally-guaranteed “free exercise” of religion.
While many of these bills would allow small business owners—like wedding planners—to refuse to serve same-sex couples, some “religious exemption” bills have targeted health care access for LGBT people. These bills threaten to exacerbate existing discrimination in health care,[8] and undermine efforts to reduce LGBT health disparities[9] and improve access to culturally competent care.[10]
The Trump Administration has implemented a number of policies and regulations that embolden health and service providers to refuse treatment and services based on religious and moral belief. Earlier this year, the Department of Housing and Urban Development said that homeless shelters could refuse to admit transgender people based on religious beliefs.[11] This would increase the vulnerability of homeless transgender women in particular to victimization.
Also in May 2019 the Trump administration finalized a health care regulation to “protect” the “statutory conscience rights” of health care providers.[12] Under this rule, providers and staff who have religious objections to certain procedures can refuse to provide them to patients. While the final rule focuses on abortion, assisted suicide, and sterilization, the language mirrors that of religious refusal laws in 12 states that authorize the denial of services, including health care, on the basis of religious or moral belief. Potential conduct protected by the final rule could include a refusal to provide care to LGBT people, same-sex couples, and their children.
The rule also threatens HIV prevention efforts for gay and bisexual men and transgender women in Africa and elsewhere that have been supported by the US President’s Emergency Plan for AIDS Relief over the past decade. It states that funding recipients cannot be required 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.
- Lambda Legal. (2010.) When Health Care Isn’t Caring: Lambda Legal’s Survey of Discrimination against LGBT People and People with HIV. New York: Lambda Legal.
- James SE, Herman JL, Rankin S, Keisling M, Mottet L, Anafi M. (2016). The Report of the 2015 U.S. Transgender Survey. Washington, DC: National Center for Transgender Equality.
- Hardisty J .1999. Mobilizing resentment: Conservative resurgence from the John Birch Society to the Promise Keepers. Boston: Beacon Press.
- Cahill S. 2004. Same-sex marriage in the United States: Focus on the facts. Lanham, Maryland: Lexington Books. 36.
- Supreme Court of the United States. 201, June 30. Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores, Inc., et al. Retrieved from: https://www.aclu.org/legal-document/burwell-v-hobby-lobby-stores-supreme-court-opinion
- Supreme Court of the United States. 2013. United States v. Windsor. 570 U.S. __ Docket No. 12-307.
- Supreme Court of the United States. 2015. Obergefell v. Hodges. 576 U.S. __ Docket No. 14-556
- Lambda Legal. 2010. When Health Care Isn’t Caring: Lambda Legal’s Survey of Discrimination against LGBT People and People with HIV. New York: Lambda Legal.
- Committee on Lesbian, Gay, Bisexual, and Transgender Health Issues and Research Gaps and Opportunities; Board on the Health of Select Populations; Institute of Medicine. 2011. The Health of Lesbian, Gay, Bisexual, and Transgender (LGBT) People: Building a Foundation for Better Understanding. Washington, DC: National Academies Press.
- Hollenbach, A.D., K.L. Eckstrand, and A. Dreger (eds.). 2014. Implementing Curricular and Institutional Climate Changes to Improve Health Care for Individuals Who are LGBT, Gender Nonconforming, or Born with DSD: A Resource for Medical Educators. Washington, DC: American Association of Medical Colleges. http://lgbt.ucsf.edu/sites/lgbt.ucsf.edu/files/wysiwyg/AAMC_LGBT-DSD%20Report%202014.pdf.
- 24 F.R. 5.
- Department Of Health And Human Services, Office of the Secretary, 45 CFR Part 88, RIN 0945‐AA10, “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority.” Office for Civil Rights (OCR), Office of the Secretary, HHS. Final Rule. May, 2019. https://www.hhs.gov/sites/default/files/final-conscience-rule.pdf