HHS Issues Rule on Moral and Religious Objections in Healthcare

On Thursday, May 2, 2019, the Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services issued a new rule that gives doctors, nurses, and other health care workers a green light to refuse to provide services to a patient if they cite a religious, conscientious, or moral objection that could have an impact on a variety of health services but which could possibly undermine health services for LGBTQ patients.  The rule allows healthcare providers – defined broadly beyond doctors and nurses too include front desk staff, pharmacists, insurance providers, and ambulance providers –to opt out of providing, participating in, paying for, or referring for healthcare services to which they have personal or religious objections.  The new rule could give health care providers a pass on discriminating against LGBTQ patients, because doctors and other providers could cite the rule as a reason to refuse seeing a patient who is in a same-sex relationship, to refuse provide gender affirming therapies or surgeries for transgender patients, or to deny fertility treatments to lesbian couples.

Transgender patients are at heightened risk for denial of health care services because and may often face discrimination when seeking medication, check-ups or other routine procedures.  In a 2015 national survey, 33% of all transgender or gender nonconforming respondents reported having at least one negative experience related to being transgender, such as being verbally harassed or refused treatment because of their gender identity, with 23% reporting that they did not seek the healthcare they needed due to fear of being mistreated as a transgender person.  In a similar 2010 study, 70% of all respondents experienced discrimination by health care providers, with nearly 21% reporting being subjected to harsh or abusive language by health care professionals.

While some may attempt to use the new rule to give health care providers a license to discriminate, there remain strong anti-discrimination statutes that protect LGBTQ patients in the provision of health care services.  Section 1557 of the Affordable Care Act prohibits discrimination on the basis of sex, and courts around the country have interpreted this to include protections for transgender patients.  Additionally, state and local laws prohibit discrimination on the basis of sexual orientation and gender identity by places of public accommodation, defined to include hospitals and clinics.  Transgender individuals are protected from discrimination in employment and in public accommodations (including in health care) under the District of Columbia Human Rights Act, under Maryland’s Human Rights law, and under Montgomery County and Howard County anti-discrimination ordinances in Maryland.

Correia & Puth represents transgender clients in commercial and health care settings, and in particular those who have been denied effective health care because of their gender identity.  If you or someone you know has experienced discrimination by a health care provider because of your sex, gender identity, or sexual orientation, the lawyers of Correia & Puth can help you seek justice and navigate the changing legal landscape under federal law. We work zealously to represent clients to seek a fair and just resolution with employers.  Please contact us today.