(Religious) Freedom for All?

Doing Harm with “Moral” Objections to LGBT Health Care

By Danielle Varney, MPAS, PA-C

The most recent Harris Poll by the Gay and Lesbian Alliance Against Defamation (GLAAD), Accelerating Acceptance, has shown a rise in anti-LGBT sentiment in the US. This is the first time since launching the poll four years prior that GLAAD did not see an increase in people’s comfort with LGBT people.

Religious freedom is often used to cloak hate-filled agendas. The LGBT community is all too familiar with religion being used to bolster hatred. Like the heat escaping from the holes in a crocheted blanket, bigotry seeps out from under the religious vestments of the right wing. No matter the issue, LGBT people seem to be a common denominator, and often end up as collateral damage. We have been denied cake, a place to urinate, and even a chance to house parentless children. Within the healthcare community, providers have refused hormone replacement therapy for gender dysphoria, withheld medically necessary hysterectomies, and denied standard infertility treatment by infertility specialists based on patients’ LGBT status. The current administration has just given more protections to those who might be “morally” opposed to providing health care services to certain populations.

Earlier this year, the United States Department of Health and Human Services (HHS) created the Office for Conscience and Religious Freedom (OCR), which has several mandates. First, it protects conscience objections – refusals to perform an act based on conscience – and the free exercise of religion. Second, it proscribes coercion on issues such as abortion and assisted suicide. Finally, the OCR prohibits HHS-funded or conducted programs and activities from engaging in discrimination against providers who refuse to participate in medical procedures which are against their moral beliefs. In theory, this sounds acceptable; but as vague as the wording is in the new mandates, it will allow providers to push their own beliefs on others. Our most vulnerable patients will be the ones who suffer most.

Religious and conscience objections within health care are not new. Federal statutes regarding religious freedom and conscience objections have existed since 1973, when Congress passed the Church Amendments in response to the Supreme Court’s Roe v. Wade decision legalizing abortion. These statutes were designed to protect health care providers’ religious or moral objections to providing abortion care. Over the past 40 years, the Church Amendments remain primarily unchanged and unchallenged. The Affordable Care Act added additional protections for healthcare providers relating to abortion and assisted suicide. These laws are already in existence, so why the new OCR?

In the decades since the enactment of the Church Amendments, the culture of medicine has gradually changed. Since the 2008 election and more recently the Affordable Care Act, there has been an implicit push to provide appropriate medical care for all people, regardless of the providers’ personal opinions or religious beliefs. While providers have long followed the tenet of “do no harm,” an effective provider must not only avoid harm, but also actively help. One way to do this is to help patients be more comfortable with themselves, since studies show that LGBT people suffer most when they remain closeted. This subtle shift in providers’ philosophies and the public’s expectations has been towards “meeting patients where they’re at,” which has changed the landscape of medicine.

Healthcare providers began being held accountable for refusing to see, treat, or refer patients who requested care that conflicted with the providers’ moral or religious beliefs. For the past ten years, the prevailing thought was that people who were against prescribing birth control shouldn't enter the field of gynecology. This mentality continued unchallenged by the government until November 2016, when it came to the attention of the new administration that healthcare providers had been disciplined by their institutions and, in some cases, lost their jobs.

What does this mean for the LGBT community? Maybe nothing, maybe everything. Up to this point, laws protecting religious freedom and conscience objections have revolved around abortion and assisted suicide, procedures that stir strong emotions on both sides of the aisle. Religious and conscience objections allow medical providers to refuse treatment based on a specific act, such as abortion, but not on the identity of the person seeking assistance. However, a 2016 court decision held that gender identity is not a protected class. This places transgender patients in a vulnerable position, opening the door to discrimination.

While the country has become more receptive towards LGBT people, it wasn’t long ago that medical literature supported the use of electroconvulsive therapy to cure homosexuality, and less extreme versions of conversion therapy are still in use today. LGBT people regularly experience healthcare discrimination. A 2010 Lambda Legal report revealed that one in two LGB people and 70 percent of transgender individuals experienced discrimination, ranging from health care workers being physically or verbally abusive to outright refusing treatment. In fact, nearly eight percent of LGB individuals were refused healthcare as a result of their sexual orientation. The statistics were bleaker for transgender people, as one in four reported being denied essential healthcare services.

On the other hand, we’ve seen progress regarding recognition that our identities are not mental illnesses. The Diagnostic and Statistical Manual of Mental Disorders has removed homosexuality from its pages and reclassified gender identity disorder as gender dysphoria. Medical schools have increasingly been adding LGBT-specific training to their curricula. And medical associations have largely supported gender-affirming treatments, such as hormone replacement therapy and surgery, for transgender individuals.

It’s not clear whether the growing acceptance of LGBT people within the medical community will endure in the era of the OCR. The OCR attempts to undermine a lot of the progress we have achieved through the Affordable Care Act, including meaningful use of Electronic Medical Records to collect sexual orientation and gender identity (SOGI) information, as well as creation of specific funding sources available for LGBT research. These funding sources are drying up and SOGI information is being removed from government sites. The HHS website states, “OCR enforces laws and regulations that protect conscience and prohibit coercion on issues such as abortion and assisted suicide (among others).” What are the other issues? LGBT organizations and their peers are concerned that any marginalized patient population could become an “other.” They are concerned about patients’ rights, and the impact that these laws and regulations could have on patients’ health. Transgender patients, who are historically vulnerable in the healthcare context, could have providers refuse to prescribe hormone therapies.

It’s not clear whether the growing acceptance of LGBT people within the medical community will endure in the era of the OCR.

In a big city like Boston or New York, refusal of care or services isn't an insurmountable obstacle; but in rural areas of the country there are fewer providers, and physical distance between providers is great. This can place an undue burden on these patients, making it difficult, or even impossible, for them to access medically necessary treatment. While hormones or hysterectomies are considered medically necessary treatment, they are not considered emergency treatment. The Emergency Treatment and Labor Act (EMTALA) requires anyone coming to an emergency department to be stabilized and treated, regardless of their insurance status or ability to pay, but would do little to assist members of the LGBT community unless they were in danger of dying. While there are some people who have a genuine issue of conscience, the creation of the OCR allows bigoted providers to hide behind claims of religious freedom and deny care to LGBT patients.

I call on you, as a member or ally of the LGBT community, to be active. If you are a healthcare provider and you are comfortable caring for the members of our community, register yourself on the Gay and Lesbian Medical Association's OUT list. If you see another healthcare provider exercising their religious freedom rights to the detriment of a patient, intervene. If you are a patient, seek care from providers who are known to be LGBT-friendly. Be vigilant in emergency rooms and on vacations in localities with fewer LGBT protections, and lead by example. If you are refused care or told that you may not receive the services requested, you can file a report against the hospital. One way to do this is through use of a patient advocate: a provider, employed by the hospital, to ensure that patients’ needs are met. You can also file a complaint with a local LGBT rights organization. Do not stand for religious freedom discrimination. Do not allow those who choose to hide behind religious or “moral” ideals to get the better hand.

Danielle Varney is a Physician Assistant (PA) who practices clinically in Cardiothoracic Surgery in New York City, where she lives with her wonderful wife and three rambunctious boys. Danielle serves as Assistant Professor and Clinical Coordinator in Touro College’s Manhattan PA Program. Prior to becoming a PA, she spent several years as a sexuality educator and public health adviser. She is a firm believer that Prosecco makes everything better.