It’s not just transgender people and women seeking abortions who are affected by new rulescoming out of the Department of Health and Human Services (HHS). All LGBTQ people and HIV-positive people could be impacted by the Trump Administration’s proposed “conscience protections.”
But the public can fight back.
The stunning 216-page document, released late last week, absolves healthcare workers of treating HIV, allows entire medical centers to decline services they find objectionable (like transgender surgeries), and grants healthcare professionals medical licenses without learning how to perform abortions. It also creates the Division of Conscience and Religious Freedom under the HHS Office of Civil Rights (OCR) to enforce the new policy.
The language is so broad it can be applied to almost any marginalized group, advocates tell INTO.
“It’s really weaponizing the Office of Civil Rights within the Department of Health and Human Services and using it to target women and transgender people and other vulnerable groups in need of healthcare,” Camilla Taylor, acting legal director of Lambda Legal, says in a phone interview.
Under the proposed rules, doctors and nurses would not have to perform or assist in abortions or trans-affirming procedures. Federally funded facilities can likewise opt out making “its facilities available for the performance of any sterilization procedure or abortion if the performance of such procedure or abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions.”
In other words, entire health centers can opt out of performing trans-related medical procedures and abortions. They can also refuse to make patient referrals for those services.
Harper Jean Tobin, director of policy at the National Center for Transgender Equality notes that referrals are defined so broadly that they, too, invite a flood of opportunity for discrimination.
“So, a health care workerincluding a licensed medical professional but also administrative staff, interpreters, etc.could claim they have a right to refuse to schedule an appointment, transfer a phone call, provide language interpretation or even find another staff member to talk to a patient,” says Tobin. That, she adds, would make it exceedingly difficult for a person to find alternative care.
The rule also protects care providers who do not want to perform euthanasia. Medical research is also included: As the document notes, workers are protected “in any lawful health service or research activity, refusal to perform or assist in any such service or activity based on religious beliefs or moral convictions.”
Taylor believes the new mandate will impact mental health services as well as medicine.
“So trans people often are required to undergo certain mental health treatment for a while before they can get trans-related healthcare, even hormones,” she says. “So if they can’t get the mental health care that they need, that is a wall that prevents them from accessing other forms of care.”
The rule further mandates that no worker be punished because they have refused to offer any “service or activity on the grounds that doing so would be contrary to his or her religious beliefs or moral convictions.”
Experts say that language is so vague that it can be applied broadly, especially to LGBTQ people.
“We know that how this plays out in practice is that a lesbian, for example, is denied care by a fertility practice because they have religious objection to helping an unmarried woman or a woman with a same-sex partner become pregnant,” Taylor says.
Jocelyn Samuels is the former director of OCR at HHS and current executive director at the LGBTQ think tank, The Williams Institute. She says there are additional reasons for concern.
Debates over conscience protections, for instance, have historically hinged on upholding religious freedom, and disagreements over serving the LGBTQ community have typically cited an individual’s faith beliefs. In the Masterpiece Cakeshop case, currently pending at the Supreme Court, a Colorado baker has claimed his religious conviction exempts him from being forced to make same-sex wedding cakes.
The addition of “moral” protections opens up uncharted territory, says Samuels.
“One of the provider conscience laws does use the term ‘moral,’ but I am not aware that it has ever been interpretered,” Samuels tells INTO. “I think the concern about using the terms religious and moral is that it opens the door to an expansion, ill-defined but potentially vast, of the types of objections that OCR thinks would justify a denial of care.”
The rule takes particular aim at globally-funded HIV programs, letting care providers off the hook on preventing, treating, or caring for people impacted by the virus.
William McColl, Vice President for Policy and Advocacy at AIDS United, notes that HIV-positive people are especially vulnerable to discrimination because of stigma around infection. Care providers may take exception with patients who contracted the virus through sex or drug use, he says.
“One of the things that’s kind of ironic about all of this is all coming in as the same time as we have an ability really with the current technology to roll back the epidemic between getting as many people on HIV treatment as possible, lowering their viral loads to the lowest amount possible to the point that hopefully they’re undetectable,” he says.
Oddly, the rule doesn’t mention “transgender” or any trans-related medical procedures once. Instead, it refers to “sterilization,” a term that may confuse many as transgender people in some European countries have been forced to undergo sterilization before changing their legal documents.
The HHS rule references one “sterilization” case pending against a California medical center. In Minton vs. Dignity Health, Dignity Health hospital faces a lawsuit for allegedly denying a transgender man a hysterectomy.
The term “sterilization” comes from conscience rules dating back to the 1970s known as the “Church Amendments.” In those amendments, trans-related procedures are likewise referred to as “steralizations.” The language, while inaccurate today, is already in place. Advocates speculate HHS used the term “sterilization” because they could claim legal precedent.
Of course, not all trans-affirming healthcare impacts reproduction.
“However, this would not be the first time we’ve seen an equivalence between two things that simply aren’t the same used to help justify a claim of religious exemption,” Tobin notes. “For example, some institutions say they object to many forms of contraception because they believe, notwithstanding the actual medical facts, that they are ‘abortifacients.’”
One area that remains up for debate is how the rule will be applied based on identity. For example, can a doctor turn away a transgender man simply because he is trans?
Samuels, who directed the OCR at HHS for three years, doesn’t think so.
“At a maximum, the Provider Conscience laws authorize providers to opt out of particular procedures based on their religious beliefs,” she tells INTO. “There is nothing in the Provider Conscience laws themselves, nor have they ever been interpreted to authorize, the denial of care to a class of individuals based on their status.”
Taylor is less optimistic.
“There is really only a semantic distinction between refusing to serve transgender people and refusing to provide the medically necessary care that transgender people need,” she says.
The document argues that the proposed rule “removes unfairness” and encourage an environment free from discrimination.
“This proposed rule is expected to remove barriers to the entry of certain health professionals, and to delay the exit of certain types of health professionals from the field, due to discrimination or coercion anticipated or experienced,” the rule states. “Second, in supporting a more diverse medical field, the proposed rule would create ancillary benefits for patients.”
There is still time to fight the rule.
HHS is taking comments for 60 days, and those comments are ostensibly supposed to impact the final mandate. Input could also prove powerful in court if the rule is challenged, say advocates. If a judge finds that HHS ignored public comment before issuing the final rule, it is more likely to be thrown out.
Advocates are exploring legal remedies, but a lawsuit can’t be filed until the rule takes effect.
“Pretty much everything is on the table,” says McColl.
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