The Trump Administration has finalized a healthcare regulation proposed in early 2018 that will “protect” the “statutory conscience rights” of healthcare providers.
The rule grants federal nondiscrimination protection to healthcare providers who deny services to people who violate the providers’ sincerely held religious beliefs.
The rule asserts that protections for healthcare 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 healthcare, 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 healthcare 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. “Healthcare is both a human and a civil right. Every law that governs access to healthcare 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 healthcare settings exacerbates LGBT health disparities. Since 2011, the Joint Commission has required sexual orientation and gender identity nondiscrimination policies in healthcare institutions that it accredits. The Joint Commission is a nonprofit organization that accredits hospitals and other healthcare organizations.
The final rule calls for notices to be posted in healthcare settings stating to healthcare 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 healthcare‐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/
“This rule is exceptionally broad, and could be interpreted to allow providers to deny general healthcare 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 healthcare correlates with poorer health outcomes and constitutes a barrier to LGBT people’s ability to access healthcare.”
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.
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