In August 2016, Evan Minton’s hysterectomy was abruptly cancelled by Mercy San Juan Medical Center (Mercy) the day before his scheduled surgery date. The cancellation had nothing to do with Mercy’s concerns over Minton’s health but rather with its status as a Catholic hospital. Mercy’s management claimed Minton’s surgery could not go forward due to its interpretation of the Ethical and Religious Directives for Catholic Healthcare Services (ERDs) as prohibiting gender-affirming hysterectomies.
Receiving this news the day before surgery was a deeply painful experience for Minton, a trans man who had already encountered significant hurdles accessing gender-affirming care. Although he was able to get the procedure at a different hospital that did not subscribe to the ERDs, this moment galvanized Minton to file suit against Dignity Health, Mercy’s owner. He hopes this suit will prevent other transgender patients from enduring discrimination.
Indeed, Minton’s experience of provider discrimination is unfortunately not uncommon. Nationwide, Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) individuals report high rates of health service denials and provider discrimination.
California Hospital Mergers
Religious refusals are an increasing concern for many LGBTQ Californians amidst the increasing number of hospital mergers involving one or more faith-based health systems in California. This is particularly true for those living in rural parts of the state, where a religiously affiliated hospital might be the only accessible option in the region. Indeed, Dignity Health—which denied Minton routine medical care on the basis of its interpretation of the ERDs—recently became the largest non-profit hospital chain in the country after merging with Catholic Health Initiatives, another Catholic health system.
The ERDs prohibit a broad range of reproductive health services, including sterilization procedures. There is significant variation in how Catholic health systems apply the ERDs, including application to individual patients within the same health system, as it did in Minton’s case. While the Dignity Health Mercy San Juan permitted sterilizations, it still cited the ERDs as the reason for cancelling Minton’s surgery date upon learning about his transgender status.
In California, the Attorney General may put conditions on hospital mergers after first soliciting public comment on the proposed transaction. California’s Attorney General Xavier Becerra has issued conditional approvals for multiple hospital merger transactions where one or more of the parties is religiously affiliated. In his conditional approval of Dignity Health’s merger with Catholic Health Initiatives, Becerra included robust prohibitions against LGBTQ discrimination and strict requirements to protect patients from discrimination. With several other proposed mergers involving a religiously affiliated hospital on the horizon, it is paramount that such provisions are included in all other conditional hospital merger approvals.
California law prohibits discrimination in healthcare for LGBTQ residents. Under California law, it is illegal to discriminate against LGBTQ people in any program or activity that is conducted, operated, administered, or funded by the state. This includes the Medi-Cal program and insurers participating in Covered California (the state’s exchange). California law also prohibits discrimination against LGBTQ people in health plan marketing, enrollment, terms, and benefit design.
In addition, California state regulators have strong guidance in place that prohibits healthcare plans from denying medically necessary gender-affirming care, like the care that Minton received in 2016. Since the release of the Trump Administration’s § 1557 Final Rule, California state regulators have reiterated their commitment to non-discrimination against LGBTQ individuals. Recently, the California Attorney General joined a lawsuit along with several other attorneys general challenging the final rule, citing, in part, the burden imposed by its conflict with California anti-discrimination law. As California state regulators have made clear, anti-LGBTQ discrimination in healthcare is illegal regardless of whether or not it is religiously-motivated.
California courts have also affirmed this principle of nondiscrimination; in Benitez v. North Coast Women’s Care Medical Group, an infertility clinic refused to provide routine infertility treatment services to a patient solely because she was a lesbian. In that instance, the providers claimed that their fundamentalist Christian views prevented them from providing care to the patient. Ultimately, however, the California Supreme Court ruled that California’s nondiscrimination laws prohibit providers from engaging in religiously motivated anti-LGBTQ discrimination in healthcare.
The role of California’s Department of Justice (DOJ)
As Minton’s case illustrates, even with legal and regulatory protections in place, LGBTQ Californians routinely encounter healthcare discrimination from both providers and insurers. Indeed, well-founded fears regarding discrimination in healthcare dissuade LGBTQ patients from seeking necessary medical care. The rapidly consolidating hospital landscape, increasingly dominated by religiously affiliated providers—especially in the context of the recently challenged §1557 Final Rule—makes LGBTQ Californians even more vulnerable to healthcare discrimination.
In light of these concerns, it is critical for the DOJ to take special care when analyzing proposed hospital mergers, particularly where one or more parties to the merger is religiously affiliated. The DOJ has a duty to ensure that hospital mergers protect LGBTQ Californians’ access to care and the power to hold the parties in these transactions accountable. The DOJ can accomplish this by attaching conditions requiring that the combined entities—in accordance with California law—must not discriminate against LGBTQ patients and enforcing these conditions stringently.
Authors: Skyler M. Rosellini (Written by intern: Hillary Norris)