“No hospital should be allowed to decide who their patients are, particularly when they receive government funds. Denying care to someone at their time of need because of their sex or gender identity is not only dangerous and humiliating, it’s against the law,” said Lambda Legal Staff Attorney Omar Gonzalez-Pagan in a press release.
Founded in 1973, Lambda Legal is one of the top nonprofit organizations the mission of which “is to achieve full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV.”
According to Lambda Legal, in June 2015, Conofti received a letter from hospital representative Father Martin D. Rooney stating that the request to “remove all female parts” for the purposes of “gender reassignment” would not be permitted at its facilities due to St. Joseph’s being a Catholic hospital.
In its 2017 lawsuit, Lambda makes the argument that the denial of services is illegal on multiple counts. It argues that not only is Conforti’s procedure medically necessary, but also that it is contractually obligatory. The hospital allegedly violated expectations previously set, as well as ignoring the language in its own patient bill of rights, stating that patients have the right:
To treatment and medical services without discrimination based on race, age, religion, national origin, sex, sexual preferences, gender identity or expression, marital, domestic partnership, or civil union status, handicap, diagnosis, ability to pay, or source of payment.
Furthermore, the Lambda lawsuit goes on to state that the denial of services also violates both federal and state laws. Attorney Gonzalez-Pagan said, “In the United States, one in six hospital beds are in Catholic hospitals. These health-care providers must comply with federal and state anti-discrimination laws so that the health of LGBT people who walk through their doors is not endangered.”
The New Jersey lawsuit comes on the heels of a recent case heard in the U.S. district court in Wichita Falls, Texas. In that hearing, eight states and three private health-care providers challenged a rule change made to the Affordable Care Act (ACA) by the U.S. Department of Health and Human Services (HHS). Prior to July, section 1557 of the ACA’s nondiscrimination rules did not include language regarding gender identity or expression. The original provisions only included “race, color, national origin, sex, age, or disability.”
In a July 2016 memorandum, HHS expanded that language to include “a new prohibition of discrimination on the basis on sex in health programs and activities outside of educational institutions, which includes discrimination on the basis of sex stereotyping or gender identity.” It was this updated language with its new definition of “sex discrimination” that became the precipitous for the Texas hearing.Like St. Joseph’s in the New Jersey lawsuit, all three private health-care providers in the Texas case are faith-based; they include the Franciscan Alliance, Inc, its subsidiary Specialty Physicians of Illinois, LLC, and the Christian Medical and Dental Society (CMDA), which has locations across the country. All three reportedly receive some amount of government funding.
The individual states involved are Texas, Mississippi, Nebraska, Kentucky, Wisconsin, Louisiana, Arizona, and Kansas.
Judge Reed O’Connor recognized the complexity of the case, saying that “while this lawsuit involves many issues of great importance—state sovereignty, expanded healthcare coverage, anti-discrimination protections, and medical judgment—ultimately, the question before the court is whether defendants exceeded their authority under the ACA in the challenged regulations’ interpretation of sex discrimination and whether the regulation violates the Religious Freedom Restoration Act as applied to private plaintiffs”
Seeking an injunction, the plaintiffs claim that “the new [HHS] regulation will require them to perform and provide insurance coverage for gender transitions and abortions, regardless of their contrary religious beliefs or medical judgment.” (p. 2) They went on to argue that the change is inconsistent with other federal definitions of “sex discrimination,” as well as a being a violation of the federal RFRA. By forcing faith-based medical facilities to perform such procedures places a substantial burden on their sincerely held religious beliefs and, they argue that the enforcement of the new rule is an administrative overreach.
In the end, Judge O’Connor sided with the plaintiffs, granting them a preliminary injunction and enjoining the HHS from enforcing the new ACA rules. Why did the judge rule that way? We spoke with Pagan lawyer and author Dana Eilers, who explained: “At several crucial points in his analysis, Judge O’Connor points out some failings in the brief submitted by the defendants.”
Two of those failings are written as such:
Defendants have failed to brief the basis of its compelling interest, leaving the Court unable to determine whether Private Plaintiffs’ religious practices jeopardize its purpose. (p. 40)
The government has failed to demonstrate how exempting Private Plaintiffs pursuant to their religious beliefs would frustrate the goal of ensuring “nondiscriminatory access to health care and health coverage,” and the government has numerous less restrictive means available to provide access and coverage for transition and abortion procedures. (p. 42)
Judge O’Connor also points to the inconsistencies within the federal government’s definitions and positions with regard to these particular medical procedures saying, “The government’s own health insurance programs, Medicare and Medicaid, do not mandate coverage for transition surgeries; the military’s health insurance program, TRICARE, specifically excludes coverage for transition surgeries; and the government’s own medical experts reported “conflicting” study results of transition procedures.” (p. 41)
The Franciscan case was rushed through the courts in December so that a decision was made prior to the start of the 2017 insurance period. Now with injunction in place, these faith-based medical facilities can reject requests for transgender procedures and abortions based on their own religious belief.
Moreover, this new ruling could set a precedent, similar to that of the 2014 Hobby Lobby SCOTUS ruling. As noted by Lamda Legal, one in six U.S. medical facilities are faith-based. Health care and religion have been comfortable bedfellows since potentially the dawn of humanity, and a legal resolution will not come easy.
Returning to the New Jersey lawsuit, there are key differences in it and the Texas case, all of which could affect the outcome. First, there is an alleged contractual element between the patient and hospital. Secondly, and regardless of that point, there is a state sovereignty component suggested by the filing – one that was even suggested by Judge O’Connor.
While the HHS only recently added “gender identity” language to the ACA rules, some of the states already had it within their own discrimination laws. The New Jersey discrimination law, for example, is extensive and includes, in part, “race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability.” Not all states have the same regulations with regard to public accommodation.
Not surprisingly, the states involved in the Franciscan case do not have the same extensive language written into law. In fact, Texas doesn’t have discrimination laws at all. While the other seven states do, their laws do not include “gender identity” or similar language.
In addition, all eight states, with the exception of Nebraska and Wisconsin, have their own RFRAs, preventing the government from burdening “sincerely-held religious beliefs.” While Nebraska may not have an RFRA, it does include a religious preference clause protecting places of public accommodation, owned by religious entities, from being prosecuted for discrimination on the basis of their religious beliefs.Why should Pagans, Heathens, and others in the minority religious sector be paying close attention to cases like these? Outside of the fact that there is definitive member crossover between such religious communities and the general LGBTQ+ community, the faith-based components alone could potentially pose future problems. Eilers explained, “This is about whether a health care provider can give you health care based on their beliefs. Suppose your Catholic doctor finds out that you are a Dianic Witch or a member of The Satanic Temple and says: ‘You are a devil worshiper, and I cannot treat you.’ ”
Eilers goes on to say, “This is the same kind of slippery slope that we were at in the Jim Crow era when we were talking about black people being able to eat at lunch counters. We all have to fill out those intake forms at doctor offices. What religion are you? Can we tell the truth, or do we have to say other in order to get medical treatment?”
While neither the New Jersey lawsuit nor the Franciscan hearing involve Pagans specifically, there are strong religious undercurrents in many of prominent social battles being waged at this time, all of which could potentially affect members of minority groups. These legal wranglings demonstrate a teeter-totter, push and pull with religious belief at the pivotal point, and they bare watching as the overall U.S. political climate shifts.
Eilers went to on to say, “Suppose that I, as a Pagan doctor, believe that having more than two children is a sin against the planet because Mother Earth cannot support the population? According to this Franciscan case, I could refuse to treat the presenting parents and child number, number four, et cetera. I could refuse to treat the Duggars and all their brood.”
These laws go all ways. She then added, “If the court were to say, ‘no, Pagan doctor, you must treat the Duggars,’ then we have a violation of the First Amendment establishment clause, because a Christian viewpoint is being exalted, whereas my Pagan viewpoint is being ground into the dirt.”
As Eilers best said, this is a slippery slope, one that is not going to go away any time soon. Not only was a precedent set by the Franciscan case, it also clearly illustrated the inconsistencies within the federal government itself with regard to defining “sex discrimination.” That is a matter that, as Eilers said, would ultimately have to be addressed and clarified by Congress.
Could the decision in the Franciscan hearing affect the New Jersey lawsuit? At this point, it is unknown. Eilers speculates that if the two decisions are in direct conflict, there a small potential that the subject could eventually be taken up by SCOTUS. Time will tell.
In all the above discussions and the legalese, there is nothing that addresses something more basic: the ethics of denying medical care to someone in need, or even in crisis. How would an emergency situation play out? That is question that still needs to be asked of these hospitals. Would you deny life-saving medical care to a transgender patient?
For the time being, the only solution for those, like Jionni Conforti and others who could face denial of services due to the religious convictions of a local hospital or medical center, is to know your patient rights, know your doctor and the facility, and get everything in writing.
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The Wild Hunt would like to thank Dana Eilers for her time and expertise in the analysis of the noted legal hearing and lawsuit. Eilers is a retired lawyer and the author of Pagans and the Law. On WitchVox, she offers a white paper detailing “Brief Points for Modern Pagans.”