Last week, Texas Attorney General Ken Paxton, whose office was unable to respond to Bustle's request for comment as of press time, filed suit in district court, asserting that health care providers should have the right to discriminate against transgender patients. (Though, as reported by Houston Press, providers already aren't exactly shy about denying care to trans patients.) Paxton's statement indicates that his office doesn't think care providers should be compelled to provide "controversial services" to trans patients. And Kansas, Kentucky, Wisconsin, and Nebraska have all signed onto the suit, along with several Christian health care organizations. The suit represents yet another salvo in Texas' war on the trans community, but it's also another attempt to chip away at key provisions of the Affordable Care Act.
On its face, this lawsuit would be scary enough as it is. A 2010 National Center for Transgender Equality and National Gay and Lesbian Task Force study highlighted the stakes for trans people, with respondents reporting higher rates of depression and HIV infection and difficulty accessing care because physicians refused to see them or provided discriminatory care. But in context, it gets even scarier. And to understand the depths of that context, we have to wind the clock back a bit to 2014 and our old friend Burwell v. Hobby Lobby, a case in which the Supreme Court determined that closely held corporations did not have to adhere to the contraceptive mandate in the ACA if doing so would violate religious belief. The case rang alarm bells across the United States in the reproductive health community, and their concern turned out to be valid. The ruling opened up a floodgate for similar challenges, many of which relied on the Federal Religious Freedom Restoration Act to assert that denying aid for birth control is a religious right.
Texas has been a busy bee when it comes to suing various branches of the Obama Administration — in fact, it has filed suit over 40 times. In this case, the suit is a direct response to a DHHS rule clarifying Section 1557 of the Affordable Care Act, which prohibits sex-based discrimination, which went into effect last month. That section is extremely important for people who have historically faced discrimination in health care because of their sex or gender, like trans patients who can't get coverage for transition-related services. This is not a small problem. In a 2014 study, for example, 42 percent of trans men reported some degree of discrimination at doctors' offices and hospitals.
The DHHS determined that care providers should not be allowed to deny transgender people medically necessary care, like transition services. That means an insurance provider can't refuse to pay for a man's hysterectomy, or a physician can't deny hormone replacement therapy, unless they can prove the denial is medical and fact-based, rather than rooted in personal belief. Medical and surgical transitions are no longer experimental, and have specific sets of standards of care, which makes it hard to legally justify a denial of coverage or services. "Controversial" doesn't really have a clear medical definition, but the body of evidence supporting access to transgender services argues against considering transition care as a subject of debate.
Imagine going to the doctor for a pap smear and being told that performing one would violate your doctor's religious beliefs, or being told that screening you for prostate cancer would violate your physician's "conscience." That's what trans people face now.
The Franciscan Alliance, Specialty Physicians of Illinois, and the Christian Medical and Dental Associations, all of which are also named on the suit, are claiming that the rule interferes with the ability to exercise individual medical judgment, according to U.S. News. In his press release, Paxton explained that:
The impact of this new rule on Texas and health care workers is significant. Not only does the rule require taxpayers to fund all treatments designed to transition to a different sex, it also forces health care workers, including physicians, to provide controversial services. Under the new rule, a physician that believes that certain treatments are not in a patient’s best medical interests may be in violation of federal law. And a physician that, for religious or conscientious reasons cannot perform a particular procedure, chooses to instead refer a patient to another health care provider may also be determined to be in violation of this new rule.
His statement argues that care providers should be able to turn trans patients away if they fear violating the Hippocratic Oath or believe that providing treatment violates their "conscience, or their personal religious belief." This could be construed as discriminatory, and it's another example of using religion as a fig leaf to justify refusing to provide services, from birthday cakes to adoption, to LGBTQ Americans. Paxton's comments also reiterate a number of myths about the trans community, such as doggedly insisting that "sex" is a simple "statement of fact," rather than a complex biological and psychological identity, and refusing to acknowledge that gender is a separate issue. Proponents are also scaremongering about surgeons forced to perform surgical transition procedures on minors — aka, "Someone think of the children."
How long will it take for a state to decide to sue for the right to discriminate against another theoretically legally protected group? Section 1557 also covers disability, national origin, age, race, pregnancy, and other statuses. If religion can justify turning a pregnant man away from an obstetrics practice, what about a Muslim Syrian immigrant with chronic pain?
This law, and others like it on the state level, have proved to be powerful weapons in the conservative arsenal, with people effectively using them as shields for discrimination. "Jesus made me do it." The imposition of personal values on other people has been found allowable under such laws, in case after case. Imagine going to the doctor for a pap smear and being told that performing one would violate your doctor's religious beliefs, or being told that screening you for prostate cancer would violate your physician's "conscience." That's what trans people face now.
Should this suit prevail, it means that we'd be laying the groundwork for health care providers to legally refuse treatment — including lifesaving medical care — to trans people. How long will it take for a state to decide to sue for the right to discriminate against another theoretically legally protected group? Section 1557 also covers disability, national origin, age, race, pregnancy, and other statuses. If religion can justify turning a pregnant man away from an obstetrics practice, what about a Muslim Syrian immigrant with chronic pain?
This case puts forward the notion that religion — specifically, a warped interpretation of Christianity — should trump protected classes. Which is why it should be worrying for everyone, and not just trans rights advocates. Any "conscience exemption" which allows personal beliefs to interfere with the provision of health care should be viewed as unacceptable.