Religious ExemptionCatholic Hospitals Are Barring Transgender Patients from Surgery

A genderqueer person sitting in a hospital gown sitting in an exam room (Photo credit: Zachary Drucker/The Gender Spectrum Collection)

Evan Minton had been planning his gender-confirmation surgery at Mercy San Juan Medical Center in Sacramento, California, for months. Two days before the procedure, a nurse from Mercy San Juan called to check in with him and ask routine health questions. That’s when Minton explained—over the phone—that he’s transgender; the next day, a hospital official called him to cancel his surgery. Mercy San Juan deemed a hysterectomy for a transgender patient a form of sterilization, and that wasn’t a procedure the hospital could perform because it’s a Catholic institution. The hospital does permit hysterectomies for others, however. Dr. Lindsey Dawson, Minton’s physician, says that she has performed the procedure at Mercy San Juan before, and that the hospital’s decision to cancel the surgery is discriminatory.

Minton is now suing Dignity Health, the hospital’s parent company, claiming that withholding the surgery because of his gender identity violates California’s Unruh Civil Rights Act, which specifically “outlaws discrimination in housing and public accommodations based on sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.” The hospital has defended its decision to cancel Minton’s surgery, citing the religious protections within the First Amendment and their adherence to the Ethical and Religious Directives that guide Catholic hospitals and their care set forth by the U.S. Conference of Bishops. Known as the Ethical and Religious Directives for Catholic Health Care Services, these governing principles were first written in 1948. Six editions have been published since, with the most recent update released in June 2018.

Catholic hospitals are not strangers to lawsuits related to these directives. In 2015, the American Civil Liberties Union of Michigan sued Trinity Health, a Catholic healthcare system encompassing more than 100 hospitals around the United States, for refusing to provide emergency abortions to women in danger. United States District Court Judge Gershwin A. Drain dismissed the lawsuit in 2016, defending Trinity Health’s right to deny care. In the opinion, Drain wrote, “Plaintiffs have not explained what medical conditions would place their members at risk, or if any of their members have such a condition that would place them at risk.” In response, the ACLU issued a statement from Staff Attorney Alexa Kolbi-Molinas that said, in part, “Today’s decision to dismiss this important case has grave implications for the many pregnant women and their loved ones who remain at risk of being turned away by hospitals where religious leaders are playing doctor. It is important to recognize that the court’s decision says nothing about whether Trinity’s policies of withholding emergency abortions from women is lawful.”

While the prohibition in the directives against abortion received national media attention, the ban against sterilization (as well as against euthanasia) can have consequences that are just as dire. The sterilization prohibition has become particularly relevant to transgender patients; in addition to Minton, several plaintiffs across the country have leveled lawsuits at Catholic hospitals that have denied surgeries based on the sterilization ban. In Eureka, California, Oliver Knight alleges that he was refused a hysterectomy at St. Joseph hospital because he’s transgender. In Paterson, New Jersey, Jionni Conforti claims he was also turned away from St. Joseph’s healthcare system after requesting a hysterectomy. Knight is suing through the ACLU and Conforti is suing through Lambda Legal. Elizabeth Gill, one of Minton’s attorneys from the ACLU of Northern California, argues that the sterilization ban alone does not explain the hospital’s refusal to perform these surgeries. “Catholic hospitals do not offer top surgeries or prescriptive hormones—treatments that would not be sterilizing—if they are part of gender-affirming care,” she says. In this case, she adds, “It’s not about just sterilization. It’s about the restrictions placed on trans people.” Even as these arguments rage on, the Roman Catholic Church has not issued an overall position about gender-confirmation surgery.

In fact, no papal address has mentioned transgender healthcare, and it is not covered in the Catechism of the Catholic Church, a book written by the Vatican in 1992 and promoted by Pope John Paul II, that sums up Catholic beliefs. In June 2019, the Vatican released a document titled “Male and Female He Created Them,” which affirmed that the church believes in the binary existence of men and women but only mentioned the word “transgender” twice and didn’t mention gender-confirmation surgery at all. It’s unclear yet if the new document will have an effect on policy going forward. “Some people disagree with me about this, but as far as I can see, there has been no explicit teaching on transgender or transition services for transgender patients,” says Father Charles Bouchard, a senior director of theology and ethics at the Catholic Health Association. “You can kind of infer some things from scripture and from our teachings on other things, but I’m not aware of any explicit teaching either from the Vatican or from any Bishops group.”

Though Catholic hospitals have refused to perform gender-confirmation surgeries across the board, Catholic bioethicists are split on the issue: Some believe that the surgery could curb the pain of “gender dysphoria,” and others feel that such procedures are a mutilation that “goes against god’s will.” Christian Brugger, a theological consultant to the U.S. Conference of Catholic Bishops’ committee on doctrine, is among the latter. In a 2016 essay responding to two Catholic bioethicists writing somewhat favorably of the surgery published in HealthCare Ethics USA (a quarterly publication put out by the Catholic Health Association), Brugger wrote in the same publication that to perform these surgeries would be intrinsically evil, because “Our sex is written into every one of our 60 trillion or so cells. [Gender-confirmation surgery] is therefore a pretender’s game.”

He concludes his rebuttal by listing the reasons Catholic hospitals should not take part in the surgery, including the possibility of “scandal,” “contributing to culturally flawed attitudes about sex and gender,” “the problem of non-marital and homosexual behavior,” the “bad effects on the cooperator,” “unfairness towards vulnerable dependents and relationships,” the impacted “Christian witness of Catholic hospitals,” and “the duties of medical practitioners.” Brugger is not alone: A 2017 letter from the United States Conference of Catholic Bishops’ website signed by four of the conference’s own committee members reifies the group’s anti-transgender position. And though that position is not yet written into official doctrine, according to Dr. Eric Plemons—a medical anthropologist at the University of Arizona and author of the June 2019 Cross Currents article “Not Here: Catholic Hospital Systems and the Restriction Against Transgender Healthcare”—anti-trans policies have become implied as part of “a new policy made to look old.” Plemons suggests that Catholic hospitals are justifying an anti-transgender position by claiming to merely be enforcing longstanding principles against sterilization. “They are trying to make these quick backward arguments to say they have always been opposed to this,” Plemons says. “But that’s just not true.”

This matters because Catholic hospitals are on the rise. In 2001, the largest Catholic healthcare systems controlled 259 hospitals in the United States; as of 2016, they control 384. A 2013 report from ProPublica described the quick growth of Catholic hospitals, showing that many of them are located in towns where there aren’t any non-Catholic healthcare options. The Catholic Health Association, an organization that represents and helps lead 90 percent of the country’s Catholic hospitals, estimates that “one in seven patients in the United States is cared for in a Catholic hospital.” Dignity Health, the system that refused Minton’s surgery, has 29 hospitals across California and is the fifth largest healthcare system in the country—Catholic or otherwise.

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A 2016 report by MergerWatch, a nonprofit that researches hospital acquisitions and consolidation, found that the prevalence of Catholic healthcare changes from state to state. According to the report, in Alaska, Iowa, Washington, Wisconsin, and South Dakota, “more than 40 percent of the acute care beds are in facilities operating under Catholic health restrictions.” MergerWatch has also tracked dozens of previously secular hospitals and clinics that have been recently acquired by Catholic systems that now require them to adhere to these directives. Dr. Debra Stulberg, a researcher and physician at the University of Chicago who specializes in the effects of Catholic healthcare systems on patient care, watched as her own residency hospital in Chicago was acquired by Resurrection Health Care (which has since become Presence Health). “I saw the change in our hospital firsthand,” Stulberg remembers. “It wasn’t just abortions, either. We went from providing postpartum tubal ligations one day to just stopping.”

Minton’s case, and the rapid expansion of Catholic healthcare systems overall, comes at a time when conflicts about religious freedom and healthcare are taking center stage. In January 2018, the U.S. Department of Health and Human Services created a new Conscience and Religious Freedom Division in their Office for Civil Rights that works to ensure that healthcare employees  don’t have to provide medical services they oppose on religious grounds. In May 2019, the office finalized a “conscience rule” that explicitly states this policy. In December 2019, federal district court Judge Paul Engelmayer blocked the rule, and it remains to be seen if the Trump administration will fight back. Transgender advocates fear that the conscience rule will allow even more providers to opt out of providing care to those in need. “In a survey conducted in 2015, we already found that one out of three trans people have had issues with their healthcare provider,” says Gillian Branstetter, the media relations manager for the National Center for Transgender Equality. “This rule will just make it worse and inherently encourage discrimination against transgender people.”

A separate rule that specifically undercuts protections for transgender people seeking healthcare is also expected to be passed by the Department of Health and Human Services soon; it’s related to section 1557 of the Affordable Care Act, which prohibits sex discrimination in healthcare. In 2016, President Obama included anti-transgender discrimination under the sex discrimination umbrella. Now, the Trump administration is preparing to remove that clause, likely due in part to some religious organizations protesting the inclusion of the clause. In a 2015 letter to the U.S. Department of Health and Human Services, several faith-based groups (including the United States Conference of Catholic Bishops) expressed concern about the impact that the implementation of section 1557 would have on religious health services. In the letter, the organizations claimed that gender transition has nothing to do with sex discrimination; as with contraceptive coverage, it argued, religious organizations should not be forced to partake. The letter also challenged the point of gender-confirmation surgery at all, stating, “while OCR characterizes them as ‘services,’ we believe, as do many healthcare providers, that medical and surgical interventions that attempt to alter one’s sex are, in fact, detrimental to patients.”

Transgender advocates fear that the conscience rule will allow even more providers to opt out of providing care to those in need.

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These policies and resulting statements, coupled with the reach and growth of Catholic healthcare systems, could make access to gender-confirmation surgery even more difficult. It is now almost impossible for transgender patients to seek referrals from doctors at Catholic institutions; the new sixth edition of the Ethical and Religious Directives tightens controls on relationships Catholic hospitals can form with non-Catholic entities. Some physicians at Catholic hospitals used to refer patients to secular hospitals or clinics for reproductive care or gender-confirmation surgeries, but the updated directives now forbid such partnerships, requiring that all mergers or relationships with Catholic health facilities “must be operated in full accord with the moral teaching of the Catholic Church.” Which is to say, according to the Health Law Program and other experts on Catholic care, that Catholic hospitals are not allowed to refer to or work with other hospitals or clinics that participate in activities the directives are against—like abortion or gender-confirmation surgery.

“In many cases, these hospitals are [a transgender patient’s] only option,” Gill says. “And many patients don’t even know that Dignity Health hospitals are Catholic, so they don’t know what they’re getting themselves into.” Though some Catholic hospitals around the country have crosses behind their front desks and statues of the Virgin Mary outside their front doors, many blend in with secular hospitals and few mention the directives prominently on their websites. A 2018 analysis conducted by the New York Times found that less than 3 percent of the 652 Catholic hospital websites surveyed were easily identifiable as Catholic. “For trans patients, it’s also about what their insurance covers, where other doctors refer them to, or what hospital is nearby,” Plemons says. “Many of these people already face issues with their healthcare, and don’t even know if their providing hospital is Catholic.”

Advocacy groups for transgender rights are concerned about the widespread impact of these directives as well. “No one should have to wonder about their hospital’s religious affiliation in relation to treatments,” Branstetter says. “No one should have to worry about having their treatments or healthcare interrupted.” For now, Minton, Conforti, and Knight are awaiting settlements, court dates, and possibly appeals. According to Plemons, the outcomes of their cases could have repercussions beyond healthcare. “If you can say that Catholics don’t believe trans people exist, which they don’t, and that belief itself becomes protected as religious doctrine, then the effect of that can be massive,” Plemons says. “From names to restrooms to legal protections, the effect reverberates far beyond healthcare because it would be establishing in law a religious exemption around the belief that trans people exist at all.”

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by Leah Feiger
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Leah Feiger is a gender, religion, and global writer.