Medical and Mental Health Groups Tell HHS: No #RxforDiscrimination!
by Harper Jean Tobin
Throughout 2017, the Trump Administration sought to promote a false “right to discriminate” using the banner of religious exemption. Following the President’s Executive Order, Attorney General Jeff Sessions issued a sweeping memo on “religious liberty,” which mixed well-established legal principles with extreme claims of a right to discriminate.
In October, the Department of Health and Human Services (HHS) invited the public to identify policies and regulations that should be eliminated, in an attempt to make it easier for religious organizations to receive federal funds. The federal Regulations.gov website showed that HHS received over 12,000 comments, but for weeks the Administration refused to make them public, except for a few dozen comments mostly calling for the repeal of regulations recognizing health care protections for transgender people.
After NCTE and others protested and filed FOIA requests, HHS relented and published the public comments online December 22. They showed overwhelming opposition to discrimination, and strong support for the landmark rules recognizing transgender health care protections — including from the nation’s leading medical and mental health organizations.
LGBT and health care advocates document the need for nondiscrimination protections
NCTE joined scores of health, civil rights, aging, faith, and other advocates to urge HHS not to allow discrimination in the name of religion. NCTE’s comments documented the real and widespread harms caused by health care discrimination — including that 33% of respondents to the 2015 US Transgender Survey who sought health care in the last year faced mistreatment because they were transgender. Nearly one-quarter (23%) of respondents avoided seeking health care in the last year when they needed it, out of fear of discrimination. Our comments also highlighted cases in which — against the medical judgments of health care providers — some hospitals have cancelled medical procedures solely because they discovered the patient was transgender.
Faith-based groups like the Religious Action Center for Reform Judaism highlighted that most people of faith do not support discrimination, stating, “As Jews, we know that the right of Americans to live according to their beliefs does not conflict with an unshakable commitment to civil rights.” Similarly, comments from Catholics for Choice stated, “nondiscrimination laws and program conditions are not barriers or discrimination based on religion. They are fundamental legal requirements from which there can be no accommodation.”
A smattering of comments from pro-discrimination groups like the venomously anti-LGBT Alliance Defending Freedom (ADF) filled their comments with false claims, saying that gender identity protections “have no basis in law,” while ignoring a mountain of federal court rulings. They also claimed, without citing a single real-life incident, that nondiscrimination protections like ACA Section 1557 “will result in doctors, nurses, and other healthcare providers suffering unlawful restrictions on their ability to practice medicine.”
Medical associations line up to oppose discrimination
In fact, the major national associations representing medical and mental health professionals spoke out forcefully against any rollback of nondiscrimination rules or other patient protections. Here’s a brief selection of what they said:
Based on longstanding policy, the AMA opposes any discrimination based on an individual’s sex, sexual orientation, gender identity, race, religion, disability, ethnic origin, national origin, or age. AMA policy also supports public and private health insurance coverage for treatment of gender dysphoria as recommended by the patient’s physician. Section 1557’s protections assist some of the populations that have been most vulnerable to discrimination, such as lesbian, gay, bisexual, and transgender individuals and those suffering from mental illness, including substance use disorders, and help provide those populations equal access to health care and health coverage. We also note that Section 1557 does not force physicians to violate their medical judgment. Rather, covered entities, including insurers, must “apply the same neutral, nondiscriminatory criteria [used] for other conditions when the coverage determination is related to gender transition.
In sum, the AMA stands behind Section 1557’s gender identity protections and opposes any modifications to the rule that would jeopardize the health and wellbeing of vulnerable populations.
The AMA has also published a fact sheet debunking claims that nondiscrimination protections for LGBT patients infringe on the rights or medical judgment of providers.
While we recognize the important role that faith-based organizations play in improving access to healthcare for vulnerable individuals, we are concerned that this proposal would create religion-based exceptions that would allow providers to discriminate against Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ) patients. Based on longstanding policies, the APA supports laws that protect the civil rights of our LGBTQ patients, and that includes ensuring that they cannot be denied health services.
The right of persons to practice their religion should not entail a concomitant right to harm others and ensuring that faith-based organizations are able to provide services should not be used as a rationale for any weakening of existing nondiscrimination provisions… APA urges HHS to focus first on the needs of program beneficiaries and avoid any changes that would create barriers to accessing services or programs, including any rolling back of nondiscrimination rules.
The AAP advocates for policies that are gender-affirming for children — an approach that is supported by other medical professional organizations. In 2016, the AAP joined with other organizations to produce the document, “Supporting & Caring for Transgender Children,” a guide for community members and allies to ensure that transgender young people are affirmed, respected, and able to thrive. Section 1557 of the ACA contains essential nondiscrimination provisions for LGBTQ youth including prohibitions for discrimination on the basis of gender identity. These protections should be maintained and all covered entities, including faith-based organizations, should be required to comply.
The Academy supports initiatives to address the health needs of all underserved populations, including lesbian, gay, bisexual, and transgender (LGBT) individuals… We strongly believe that religious exemptions to government regulations should not be expanded to permit discrimination in the provision of any HHS services, no matter which contractors or sub-contractors provide them.
Section 1557’s protections assist some of the populations that have been most vulnerable to discrimination, such as lesbian, gay, bisexual, and transgender individuals and those suffering from mental illness, including substance use disorders, and help provide those populations equal access to health care and health coverage.
In sum, NASW fully embraces Section 1557’s gender identity protections. We fervently oppose any modifications to the rule that would jeopardize the health and wellbeing of vulnerable populations.
The inclusion of gender identity as prohibited from discrimination under Section 1557 is a vital tool in our efforts to overcome barriers to health care for transgender individuals… Nondiscrimination rules such as the ACA Section 1557 implementing rule, and other protections for patients and program beneficiaries, must not be compromised or eliminated.
NCTE will keep a close watch on what HHS does in 2018.
To find out more about your health care rights and how you can stop the Trump Administration’s efforts to promote discrimination, visit NCTE’s Health Care Action Center.
Harper Jean Tobin is Director of Policy at NCTE.