Here Comes the Next Big Civil Rights Fight in Health Care

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Analysis Law and Policy

Here Comes the Next Big Civil Rights Fight in Health Care

Jessica Mason Pieklo

Among its other protections, Section 1557 expressly prohibits anti-transgender discrimination and refusals to provide reproductive health care. That means it has the potential to significantly advance gender equity in the delivery of health-care services.

In 2010, the Obama administration implemented one of the most significant federal civil rights laws in decades. But you’ve likely never heard of it.

Section 1557 of the Affordable Care Act prohibits discrimination on the basis of sex in all health-care programs and activities by any entity receiving federal funds. Specifically, Section 1557 forbids the denial of health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity, and sex stereotyping. It also mandates the delivery of reproductive health care services like abortion and sterilization at any health-care facility, including for religious and religiously affiliated providers. The final rule also requires covered health programs and activities to treat individuals consistent with their gender identity.

In other words, among its other protections, Section 1557 expressly prohibits anti-transgender discrimination and refusals to provide reproductive health care. That means it has the potential to significantly advance gender equity in the delivery of health-care services, the way Title VII has made significant advancements in addressing race and sex discrimination in the workplace.

Unlike the ACA’s contraception mandate—also known as the birth control benefit—Section 1557 has no carve-outs or religious exemptions. And unlike the birth control benefit, which has been the target of high political theater involving congressional hearings and scaremongering about religious freedom, Section 1557 went into effect as part of the ACA with very little fanfare or opposition.

Until now.

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Texas and four other states sued the Obama administration last week over Section 1557 on behalf of three medical organizations. Kansas, Kentucky, Nebraska, and Wisconsin joined in the suit, saying the rule “represents a radical invasion of the federal bureaucracy into a doctor’s medical judgment” and “seeks to override the medical judgment of healthcare professionals across the country.”

According to the allegations in the complaint, Section 1557 “forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual’s sex—including the sex of children.”

“Thus, with a single stroke of the pen, [the Department of Health and Human Services (HHS)] has created a massive new liability for thousands of healthcare professionals unless they cast aside their medical judgment and perform controversial and even harmful medical transition procedures,” the complaint continues.

The plaintiffs, on whose behalf the states are suing, include the Christian Medical & Dental Associations, which include more than 17,000 health-care professionals, and the Franciscan Alliance, a network of religious hospitals founded by the Sisters of St. Francis of Perpetual Adoration. According to their lawsuit, these religious organizations are “deeply committed to the dignity of every human person, and their doctors care for everyone with joy and compassion.”

The gist of the complaint is that despite their deep commitment to delivering health care to “every human person,” these organizations do not want to treat certain people or conditions. Specifically, these groups are arguing for the legal right to refuse to provide necessary medical care to LGBTQ people and women simply based on who they are. And because Section 1557 does not have a religious carve-out to allow them to discriminate in the delivery of care, conservative lawmakers are going to help them sue to try and get one.

Unfortunately, the reality is that the denial of services on the basis of sex and gender is already a reality for far too many people—even with Section 1557’s nondiscrimination guarantees. That is exactly the experience Jakob Rumble, a transgender man who is one of the first plaintiffs to sue under Section 1557, alleges he faced when seeking care at a Minnesota hospital. According to allegations in a lawsuit filed by Rumble in June 2013, Rumble began experiencing pain in his reproductive organs. His primary care physician did some testing and eventually gave Rumble a prescription for a seven-day course of antibiotic treatment. When Rumble’s pain worsened and his fever spiked, Rumble, who was 19 at the time, contacted his mother. Together, they went to the emergency room.

From there Rumble’s story gets more traumatic. According to the allegations in the complaint, hospital staff repeatedly and intentionally publicly misgendered Rumble. He and his mother say they went hours without hospital staff treating Rumble, despite multiple efforts by his mother to get someone to see her son. When a doctor did finally see her son, he reportedly demanded Rumble identify who he was having sex with in a manner Rumble described as trying to “embarrass him rather than to diagnose him.” The complaint reads that the doctor then proceeded with a physical exam, including jabbing and poking Rumble’s genitalia, that was so painful to him his mother made the doctor stop the exam.

Rumble eventually sued in 2014, arguing his treatment by hospital staff violated Rule 1557’s prohibition against discrimination on the basis of gender and gender identity. “The problems [Rumble] encountered when he sought medical care are not unique, sadly,” said Rumble’s attorney, Jill Gaulding, who is also the co-founder and legal director of Gender Justice, in an interview with Rewire.

“He was frightened by the treatment that he received, and that is something unfortunately that happens a lot if you are transgender,” Gaulding continued. “You have to worry every time you go to obtain medical care unless you are familiar with a particular provider and you know that they offer respectful, nondiscriminatory care. There’s always a risk that you are going to encounter discrimination, and the harms that flow from that are really just enormous.”

As Gaulding explained in her interview, Rumble’s case illustrates how when it comes to medical services, discrimination like the kind Rumble is describing amount to a both a personal injury and a public health concern.

“These instances of discrimination don’t only affect that particular person,” said Gaulding. “It is a critical part of everyone’s life that you be able to obtain good medical care when you need it … and when you have to worry about not getting good medical care just because of who you are, that really diminishes the quality of life you have and it diminishes your health,” Gaulding said.  “And it is a public health problem: If there’s a segment of the population that can’t be sure they can have access to good health care simply because of who they are, that is a problem for all of us. That is a public health problem.”

That reality—that broad segments of the population including transgender individuals have little access to reliable and respectful health care—was one of the key congressional considerations in drafting Section 1557. Much like the ACA’s birth control benefit, the provision is designed to reach more hidden expressions of discrimination. “That is one of the reasons why Congress passed this civil rights provision as part of the Affordable Care Act,” Gaulding said. “They were looking out for the rights of the individuals who were being discriminated against, but they were also looking out collectively for all of us because we all benefit if the medical system doesn’t operate in a discriminatory way.”

The hospital where Rumble was seen asked the court to throw out his lawsuit, arguing he had no right or standing to sue under 1557. But the federal district court disagreed; in March 2015, it allowed Rumble’s case to move forward. Though it has not yet been determined whether the hospital discriminated against Rumble based on his gender identity, the case is already representing an important step forward. Prior to Section 1557, there was no legal redress when health-care providers discriminated in the delivery of services to patients simply because their identity.

As Rumble’s case demonstrates, in the face of ever-expanding religious objections and the refusal to provide comprehensive health care and certain LGBTQ services, Section 1557 has the potential to be a powerful tool.

Which brings us back to the lawsuit challenging it—the first shot across the bow from the other side.

The complaint filed by Texas and the other states is full of fire and brimstone. It more heavily preaches the plaintiffs’ moral objections to treating transgender people or to providing reproductive health-care services than makes a legal complaint a federal court could actually remedy. In other words, it is a political challenge more than a legitimate legal one. That said, they chose to file in federal district court in Texas for a reason—so just because the legal claims are absurd on their face doesn’t mean some judge won’t greenlight them.

According to the states’ lawsuit, Section 1557 undermines state power to “regulate healthcare, ensure appropriate standards of medical judgment, and protect its citizens’ constitutional and civil rights.”

It’s easy to knock Texas, which is leading this litigation, as insincere in pleading this sovereign right to “protect” its citizens’ constitutional rights in the delivery on health-care services, given the fact that this summer in Whole Woman’s Health v. Hellerstedt, attorneys for the state raised the exact opposite argument: that Texas had the power to restrict constitutional rights to health care in the name of patient safety.

But in places like Texas, there’s even more than access to health care on the line. The state has largely immunized its hospitals from claims of substandard, negligent care. Legislators did that by both limiting the amount an injured patient can recover from a hospital and by making them prove that the hospital, through its staff or decision-making process, acted with an intent to harm patients. That means the only way hospitals are legally required to compensate victims harmed by their doctors and staff is if the injured person can show the hospital essentially wanted the injury to happen.

That is a basically impossible standard to meet. So if you are a patient harmed by bad medical care at a Texas hospital, it is going to be very hard for you to get compensated for those injuries. Unless, of course, that bad care was also discriminatory treatment. Then Section 1557 has the potential to change that playing field entirely.

This is true with religiously affiliated health care institutions as well. Catholic and Catholic-affiliated hospitals routinely turn away patients with reproductive health care emergencies under the auspices of adhering to religious doctrine but what should be considered medical malpractice. Section 1557 has the potential to end that practice, so long of course as conservatives do not successfully get through litigation what they could not get through legislation: a religious carve-out to the rule.

“This conflict … extends beyond treatment surrounding gender dysphoria, because some required procedures (such as elective hysterectomies) result in sterilization, and the new Rule also extends to “termination of pregnancy” the complaint states. “HHS could have included, but explicitly chose to exclude, a clear regulatory carve-out for services related to abortion.”

This statement is conservatives’ admission that while this particular lawsuit may be about transgender people—the current target of their ideological vitriol—their objection to Section 1557 is, in fact, much broader. Because of course it is. This lawsuit, like Texas’ lawsuit filed earlier this month challenging the Obama administration’s guidance to public schools to allow students access to bathrooms that conform to their gender identity, is about conservatives trying to further insulate religious discrimination in public spaces.

“You do, in certain situations, have to ask tough questions about how those [religious] rights balance out,” Gaulding told Rewire. “When any organization is offering health care, it is like an organization that is offering some other kind of public accommodation,” Gaulding said. “In that sense it is no different than hotel owners or restaurant owners who want to decline to serve Black customers and had claimed a religious right to do so.”

In that sense, the conservative objection to Rule 1557 is just like every other conservative objection to civil rights advancements: all dressed up in religious garb with no real place to go.

“Every person should be treated with dignity and respect, especially when in need of medical attention,” the states’ complaint reads.

Unless you are Jakob Rumble; the countless other transgender people who have received discriminatory health care; or the patients turned away by religiously affiliated hospitals that adhere to doctrine rather than the accepted medical standard of care when treating patients. Or if you are simply a patient in the state of Texas who needs an abortion. Those are not patients treated with “dignity and respect.”

We are going to hear a lot about the lawsuit filed in Texas, about Section 1557, and about patients like Rumble who are willing to put their stories out there to try and drive policy and jurisprudential change. The validity of Section 1557 might even make it up to the U.S. Supreme Court, the same way the challenges to the birth control benefit now have twice. Should they, it will be under the guise of conservatives arguing Section 1557 is an inexcusable intrusion into religious liberties and faith. Which, given their history of opposition to civil rights laws generally, pretty much proves that Section 1557 is the big deal that they claim it is.