BOSTON, May 2, 2019―Today, the Trump Administration finalized a health care regulation proposed in early 2018 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 protections for health care providers who refuse to provide services based on religious or moral belief are needed because 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 related to such discrimination that have been filed with the Office of Civil Rights at the U.S. Department of Health and Human Services has increased since November 2016.
Language in the final rule focuses on abortion, assisted suicide, and sterilization. But it is modeled on new religious refusal laws in 12 states that have been used to deny services, including health care, to LGBT people. Potential religious or conscience-related 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 latest attack on the right of everyone, regardless of their religious beliefs, to access health care is extremely alarming and disconcerting. 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. But this rule is designed so that government employees and healthcare providers can deny service or treatment to LGBT people by claiming that providing such service or treatment would violate their religious beliefs or sincerely held principles,” said Sean Cahill, Director of Health Policy Research at the Fenway Institute at Fenway Health. “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.”
It has long been recognized that the failure to explicitly prohibit anti-LGBT discrimination in health care settings exacerbates LGBT health disparities. Since 2011, the Joint Commission has required sexual orientation and gender identity nondiscrimination policies in health care institutions that it accredits. The Joint Commission is a nonprofit organization that accredits hospitals and other health care organizations.
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.” (https://www.hhs.gov/sites/default/files/final-conscience-rule.pdf, 439-440)
“This rule is exceptionally broad, and could be interpreted to allow providers to deny general health care services to LGBT people, as well as specific services such as 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,” Cahill added. “It is important to view this latest move in the context of a series of attacks on the rights of LGBT patients that have taken place over the last two and a half years,” said Cahill. “Research shows that anti-LGBT discrimination in health care correlates with poorer health outcomes and constitutes a barrier to LGBT people’s ability to access health care.”
Other anti-LGBT policies enacted by the Trump administration that are harming LGBT people include:
- Dismissing Peace Corps volunteers and Air Force service members who tested positive for HIV, and refusing to provide pre-exposure prophylaxis for HIV prevention (PrEP) to at-risk Peace Corps volunteers;
- Filing a brief with the U.S. Supreme Court arguing that gender identity is outside of the scope of Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on “race, color, religion, sex and national origin;”
- Filing a brief in the Masterpiece Cake Shop case before the U.S. Supreme Court supporting discrimination against a gay male couple and stating that there is no compelling federal government interest in prohibiting anti-gay discrimination;
- Placing transgender inmates of the Federal Bureau of Prisons, especially transgender women, at much higher risk of rape by incarcerating them according to their biological sex at birth instead of their gender identity;
- Prohibiting transgender people from serving in the U.S. military;
- Removing sexual orientation and gender identity questions from federal surveys of older adults, people with disabilities, and victims of crime;
- Attempting to repeal or weaken the ACA, which has cut the uninsured rate in half for LGBT people.
Other resources on Trump Administration executive orders, memos, and proposed rule changes that are harming LGBT people and restricting their access to care include:
Public comment to HHS Office for Civil Rights re: Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, March 27, 2018
Public comment regarding HHS Request for Information: Removing barriers for religious and faith-based organizations to participate in HHS programs and receive public funding, November 17, 2017
Public comment regarding the U.S. Department of Health and Human Services Draft Strategic Plan FY 2018-2022, October 27, 2017
The 2019 policy brief: “Trump Administration continued to advance discriminatory policies and practices against LGBT people and people living with HIV in 2018”
The 2017 policy brief: “Executive branch actions promoting religious refusal threaten LGBT health care access”
Background on nondiscrimination in health care can also be found in:
The 2016 policy brief: “What the new Affordable Care Act nondiscrimination rule means for providers and LGBT patients”
Since 1971, Fenway Health has been working to make life healthier for the people in our neighborhood, the LGBT community, people living with HIV/AIDS and the broader population. The Fenway Institute at Fenway Health is an interdisciplinary center for research, training, education and policy development focusing on national and international health issues. Fenway’s Sidney Borum Jr. Health Center cares for youth and young adults ages 12 to 29 who may not feel comfortable going anywhere else, including those who are LGBT or just figuring things out; homeless; struggling with substance use; or living with HIV/AIDS. In 2013, AIDS Action Committee of Massachusetts joined the Fenway Health family, allowing both organizations to improve delivery of care and services across the state and beyond.