Jionni Conforti, a transgender man in his 30s, was scheduled to have a total hysterectomy in the summer of 2015. The surgery was deemed medically necessary by both his primary care physician and his therapist as part of his treatment for gender dysphoria, and a surgeon had agreed to perform the operation at a hospital near Conforti’s New Jersey home.
Ahead of his surgery, however, Conforti received an email from the religiously affiliated hospital — considered one of the best hospital systems in the state — saying the surgery could not be performed there.
"This is to inform you that as a Catholic Hospital we would not be able to allow your surgeon to schedule this surgery here at St. Joseph’s,” Father Martin D. Rooney, director of mission services at St. Joseph’s Healthcare System in Paterson, wrote.
Omar Gonzalez-Pagan, an attorney with Lambda Legal who is representing Conforti in a lawsuit against St. Joseph’s, said he fears that what happened to his client could happen to more people as a result of a decision by the U.S. Department of Health and Human Services’ Office of Civil Rights, announced Thursday, to create a Conscience and Religious Freedom Division.
Gonzalez-Pagan said he worries that the new division will “use religion as a license to discriminate.” He’s not alone in this fear.
“CHANGE IS COMING”
Existing federal and state laws protect health care workers who express religious objections to performing abortions and certain other procedures. HHS said the new division would focus on enforcing these laws, which "protect the fundamental and unalienable rights of conscience and religious freedom.”
This move is the latest in a series of actions by the Trump administration to advance the cause of religious liberty. In May, Trump issued an executive order stating the executive branch would “vigorously enforce Federal law’s robust protections for religious freedom.”
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Then in October, the Justice Department, led by Trump's attorney general, Jeff Sessions, released a memo outlining 20 principles of religious liberty, asserting “free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs,” and that this right extends to both “persons and organizations.”
Eric Hargan, acting HSS secretary, applauded Trump after Thursday’s announcement.
“President Trump promised the American people that his administration would vigorously uphold the rights of conscience and religious freedom,” Hargan said. “That promise is being kept today,”
The administration of President George W. Bush put in place a rule widely interpreted as allowing health care providers to opt out of a range of services, but under President Barack Obama, HHS officials rewrote the rule in such a way as to narrow the scope of services health care providers could elect not to perform. The new division and the subsequently proposed rule released by HHS on Friday — titled Protecting Statutory Conscience Rights in Health Care — will presumably reverse the Obama-era changes.
“Laws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced," Roger Severino, director of the HHS Office for Civil Rights, said in a statement. "No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice.”
“For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now," Severino said.
Prior to his HHS post, Severino was the director of the DeVos Center for Religion and Civil Society at the Heritage Foundation, where he advocated for the Affordable Care Act’s nondiscrimination provision to exclude transgender people.
“CRUEL AND UNCONSCIONABLE”
Critics, including Democrats and LGBTQ advocates, say the creation of a new “religious freedom” division could encourage a broader range of religious objections, with a potentially strong impact on less-settled areas of the law like the status of gay and transgender individuals under anti-discrimination statuses.
"This would be yet another attempt to let ideology dictate who is able to get the care they need," Sen. Patty Murray, D-Wash., said in a statement. "Any approach that would deny or delay health care to someone and jeopardize their well-being for ideological reasons is unacceptable."
The Congressional LGBT Equality Caucus, which is led by six openly LGBTQ members of the House, blasted the announcement of the new division on Twitter, characterizing the move as an attack on transgender people and calling it “absolutely cruel and unconscionable.”
Louise Melling, deputy legal director of the American Civil Liberties Union, said the new division is an example of the Trump administration's “doubling down” on discrimination “all in the name of religion.”
“We may not know exactly what this new division will look like in practice, but we do know that this means they prioritize religious liberty over the health and civil rights of women, transgender people and others,” Melling said. “They are prioritizing providers’ beliefs over patients’ health and lives.”
Sarah Kate Ellis, president and CEO of the LGBTQ advocacy group GLAAD, was blunt in her criticism.
“Any health care worker who has moral objections to providing medically necessary care to an entire vulnerable population is in the wrong line of work,” Ellis said in a statement. “Denying a transgender person — or any person — life-saving care if they walk into an emergency room is far from a moral act, it is unjust and dangerous.”
ADDING TO EXISTING BARRIERS
Lesbian, gay, bisexual, transgender and queer people already face health disparities compared to the general population, several studies have shown, and LGBTQ advocates worry about the additional barriers and negative health effects this new division may create.
In a report released Thursday, the Center for American Progress found “LGBTQ people face disturbing rates of health care discrimination,” and such discrimination can discourage them from seeking care. The types of discrimination cited in the report included refusal of a health care worker to recognize a patient’s same-sex partner, purposeful misgendering of a patient and refusal to provide care altogether.
“It is that brazen discrimination that is so dangerous to the lives of LGBTQ people,” Gonzalez-Pagan said.
For some patients, Gonzalez-Pagan said, it’s possible to find another health care provider after being discriminated against or denied care. Conforti, for example, was able to eventually get his hysterectomy, although months later at a hospital farther from his home. But other patients, Gonzalez-Pagan added, aren’t as fortunate.
“If you live in the middle of rural America,” he said, there may “only be one provider close to you.”
“Access to health care cannot be prohibited because of who you are,” he said.
