Two Courts of Appeal recently held that, in spite of Section 1557’s important protections against discrimination, including discrimination on the basis of sexual orientation and gender identity, certain employers, health plans, hospitals, and providers may refuse to provide gender-affirming care to Transgender and Gender Diverse people. These Courts held that the Religious Freedom Restoration Act, or RFRA, allows these entities to limit care based on their religious beliefs. One of the decisions, in the Franciscan Alliance case from the Fifth Circuit Court of Appeals, also held that these entities could refuse to provide abortions.
Health care refusals have a disproportionate impact on LGBTQI+ people, and Transgender and Gender Diverse people in particular, who already experience high rates of discrimination in health care. The two recent Court decisions could allow a range of health care entities to limit coverage and provision of gender-affirming care – whether that’s an employer that eliminates coverage of gender-affirming care in its employee health plan, or an individual primary care provider who refuses to prescribe necessary hormone treatment to Transgender and Gender Diverse patients. While the Court decisions focus on religious entities’ right to withhold care that they oppose due to their religious beliefs, the effect of withholding this care is harm to Transgender and Gender Diverse people, who are the only people who need gender-affirming care.
As we have previously written, gender-affirming care is important and necessary health care. Allowing entities to refuse people this care will make it harder for Transgender and Gender Diverse people to obtain the care they need. Specifically, it will likely delay people’s access to care, and in many cases will make care more expensive. Further, as hospital mergers result in more religiously-affiliated hospitals that refuse to provide gender-affirming care, many Transgender and Gender Diverse people will have no choice but to travel long distances to access the care they need, or go without it. Unfortunately, this harm will likely be concentrated among Transgender and Gender Diverse people who are low-income, have disabilities, or Black, Indigenous, and other People of Color (BIPOC). Moreover, the impact will compound the harm that low-income and BIPOC people already face due to limits on reproductive and sexual health care due to health care refusals and restrictive laws.
Nothing in the recent Court decisions would allow religious entities to discriminate against Transgender and Gender Diverse people in other ways. Section 1557 still prohibits, for example, a Physical Therapist refusing to work with Transgender person, or Medicaid program staff harassing a Non-Binary person, because of their gender identity. Yet undoubtedly the decision to allow health care entities not to cover or provide gender-affirming care will have a chilling effect. Fear of discrimination in the form of uncertainty about whether a provider will refuse to provide gender-affirming care and how such a refusal will be communicated means many people will go without care they need.
In 2023, NHeLP will be continuingour advocacy to ensure that people have access to the full range of necessary health care services they need, including gender-affirming care, abortions, and other sexual and reproductive health services, and to fight all forms of discrimination, including health care refusals. We encourage advocates around the country to join us in this important effort.