Just over a week before the option to comment closes on March 27, the Health and Human Services (HHS) Department has failed to post even one of the 30,000+ citizen comments it has received on a proposed rule that would champion healthcare workers who refuse to provide care on moral or religious grounds.
The rule, titled “Protecting Statutory Conscience Rights in Health Care,” purports to protect “individuals and entities with objections to certain activities based on religious belief and moral convictions.”
In substance, however, the rule is more pandering than problem solving. As the word “statutory” in the name suggests, the conscience rights of health care providers are already protected by existing laws. However, under Roger Severino, the anti-LGBTQ activist who now heads the Office of Civil Rights at HHS, the agency will focus on proactively “conducting outreach and providing technical assistance” to those who refuse care.
Indeed, the proposed conscience rights rule is only the latest in a series of actions that the Trump administration has taken to undermine transgender healthcare. In late 2016, a federal court in Texas ruled that Section 1557 of the Affordable Care Act, which prohibits sex discrimination in healthcare, did not protect transgender people from discrimination based on gender identity.
While other courts have held that federal sex discrimination laws actually do protect transgender Americans, Trump’s Justice Department refused to appeal the judge’s ruling. In May 2017, HHS voluntarily offered to revise Obama-era interpretations of Section 1557 as pertaining to gender identity.
Then, in October 2017, HHS asked for public input on a plan to remove regulations for faith-based health care providers who receive federal funds. According to Politico, the agency posted less than 1 percent of the 10,729 comments it received, and the comments that it did post “overwhelmingly back the administration’s anti-abortion policies or attack regulations advanced by the Obama administration, such as a rule forcing health care providers that accept federal funding to provide services to transgender patients.”
And now here we are: another piece of HHS policy has been posted for public comment, and a zero percent chance of the comments have been posted thus far. Americans must do everything in our power—from raising awareness to filing Freedom of Information Act requests — to make sure that this rule-making process is transparent and accountable to the actual people it impacts.
Public accountability is essential, because there’s already a crisis in transgender healthcare. In 2017, nearly one third of trans people surveyed said a doctor or other health care provider refused to see them because of their actual or perceived gender identity. And in 2015, nearly one in four respondents reported that they had avoided seeking medical care out of fear of being mistreated as a transgender person.
Think about that for a moment: When people avoid seeking medical care, it means that they don’t get that lump or that spot or that cough checked out. They don’t get a flu shot. They self-medicate a busted knee or a bulging disc.
Discrimination against transgender patients affects all of us. It weakens the social fabric and endangers public health. And yet, HHS — the very agency charged with ensuring access to care —wants to recruit those who would refuse care, providing legal and ethical shelter for acts of discrimination.
To be sure, individuals who experience health care discrimination can also seek justice through the courts. According to Lambda Legal, courts have routinely rejected religious objections to treating LGBTQ people, and the lawyers at Lambda are prepared to act on behalf of patients who are wrongly denied medical care as a result of the new rule. But court cases take time, and critically ill patients — especially poor and rural patients with few options for health care providers — may not have time to wait.
That’s why, in addition to taking legal action, the transgender community and its allies need to strike up direct conversations with religious communities. Those who have experienced discrimination in healthcare settings need to share their stories, so that people of faith can focus on the real moral issue: the 23 percent of trans Americans who are afraid to access health care for fear of discrimination. Whether the Trump administration is listening, people of true conscience must surely take heed.
Paige Schilt, PhD, is the author of Queer Rock Love: A Family Memoir and a Public Voices Fellow with The OpEd Project.