MAKE AMERICA DISCRIMINATE AGAIN? WHY HOBBY LOBBY'S EXPANSION OF RFRA IS BAD MEDICINE FOR TRANSGENDER HEALTH CARE.

Author:Florczak, Alexis M.
Position:Religious Freedom Restoration Act of 1993
 
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  1. INTRODUCTION II. DISCRIMINATION AND DISPARITIES FACED BY THE TRANSGENDER COMMUNITY IN UNITED STATES HEALTH CARE A. Health Disparities in the United States Transgender Population B. The Medical Community's Treatment of Transgender Individuals C. Discriminatory Practices by Insurance Companies III. SECTION 1557 OF THE AFFORDABLE CARE ACT: NONDISCRIMINATION IN HEALTH CARE IV. THE CASE FOR RELIGIOUS LIBERTY: THE RELIGIOUS FREEDOM RESTORATION ACT AND HOBBY LOBBY DECISION A. The Religious Freedom Restoration Act of 1993 B. Hobby Lobby and its Expansion of the RFRA V. KEY DIFFERENCES BETWEEN THE HOBBY LOBBY DECISION AND SECTION 1557 CLAIMS A. More than 'Precisely Zero' Transgender Individuals Will be Affected B. Transition Related Care is Often More Difficult to Access C. The Costs of Transition-Related Care & Services are More Burdensome VI. THE GOOD, THE BAD, AND THE UNKNOWN: THE FUTURE OF NONDISCRIMINATION IN HEALTH CARE FOR TRANSGENDER AMERICANS A. Current State of Section 1557 B. The Future of the AC A C. Potential for Increased Religious Freedom Protections VII. RECOMMENDATIONS VIII. CONCLUSION I. INTRODUCTION

    While the United States has been considered a nation for all since its founding, the idea of who this nation has recognized as having a right to life, liberty, and the pursuit of happiness has changed and expanded considerably. As the United States has diversified and recognized additional rights and protections for its citizens, the question of whose rights prevail when they are in conflict with another's rights has arisen. Today, this conflict is more polarizing than ever; the recently expanded rights (1) of the lesbian, gay, bisexual, and transgender ("LGBT") (2) community often conflict with individuals and companies who assert their constitutionally protected right to religious freedom. (3)

    Health care has been no exception to the tension between these parties' equally legitimate, yet at times conflicting, spheres of rights. LGBT individuals continue to experience discrimination when seeking health care, (4) in part due to the medical profession's own stigmatization of this community. The American Psychiatric Association ("APA") considered homosexuality a mental disorder until 1973. (5) Transgender individuals--defined as those whose gender identity, expression, or behavior does not conform to the individual's sex assigned at birth (6)--were stigmatized by the medical community even longer. Until 2013 (7), the APA used the diagnosis of 'gender identity disorder,' suggesting that there was something inherently wrong with individuals who did not conform to their biological sex assigned at birth (8). Globally, this stigmatization is even worse, as the World Health Organization ("WHO") still includes identifying as transgender in its list of mental health conditions and behavior disorders. (9) WHO is striving to change this by 2018 in order to reduce the barriers to health care that transgender individuals too often face. (10) While the stigma has been removed on paper, progress still has to be made within the medical community to further eliminate discrimination and consequential health disparities that the transgender community endures. (11)

    The Affordable Care Act ("ACA") provides valuable protections to transgender individuals in health care. The ACA's Nondiscrimination or Civil Rights provision ("Section 1557"), (12) provides that individuals are not to be subjected to discrimination or denied benefits or treatment by health care providers or institutions that receive financial assistance from the federal government. (13) The Department of Health and Human Services ("HHS") provided further guidance on the ACA's nondiscrimination provision, promulgating a final rule that makes it clear that sex-based discrimination includes discrimination on the basis of gender identity and sex stereotyping. (14) HHS's final rule also provides that health care providers must treat patients in accordance with their own gender identity. (15) Section 1557 has been hailed as a victory for the transgender community, (16) because it forbids insurance companies from denying transition-related services to transgender individuals, which can include therapy, prescription drugs, and related surgeries and procedures. (17)

    However, the corrective measures of Section 1557 are at odds with advocates of religious freedom, who contend that providing some of these services to transgender patients conflicts with their religious beliefs. (18) While Section 1557 adopts the same religious exemptions available in other federal nondiscrimination laws, (19) advocates of religious freedom assert that these existing exemptions are not enough, and have challenged the validity of Section 1557 in court. Supporters of Section 1557 fear an even greater expansion of religious freedom rights in the wake of the Supreme Court's 2014 Burwell v. Hobby Lobby Stores, Inc. decision, which held that closely-held, for-profit corporations could be exempt from the ACA's contraceptive mandate because of their sincerely held religious beliefs. (20) While the Court's majority stressed the narrowness of its holding, many scholars fear that Hobby Lobby's impact will be far greater than anticipated, (21) particularly with respect to LGBT individuals. (22) The Hobby Lobby holding has already been used to justify discrimination against the LGBT community; in December 2016, a federal district judge blocked Section 1557 from implementation on the grounds that the rule violates doctors' and insurance companies' rights to religious freedom. (23) The time is now to revisit Hobby Lobby's actual implications and limitations before perilous consequences affect the transgender community.

    Part II of this Note will provide an overview of health care discrimination and the health disparities experienced by transgender individuals. The disparities endured by this marginalized community are, in part, a result of discrimination by the medical profession itself. Part II will also look at other factors that contribute to these disparities, such as the lack of knowledge providers have in treating transgender patients and exclusionary practices of insurance companies. Finally, this section will discuss the changes the medical profession is making in response to the increased visibility of the transgender community, and the need for practitioners to be competent in providing care to this population.

    Part III of this Note will discuss Section 1557 of the ACA and how this provision has built upon the foundation of other federal nondiscrimination laws. Part III will also discuss the final rule promulgated by HHS, which clarified Section 1557's scope and application to protecting the transgender community in health care.

    Part IV will provide a brief overview of religious liberty protections at the federal level. Specifically, Part IV will discuss the Religious Freedom Restoration Act ("RFRA") and the history that led to its passage. Additionally, it will discuss the Supreme Court's 2014 Burwell v. Hobby Lobby decision and RFRA's expansion. Because the Court provided little guidance to lower courts for evaluating a corporation's sincerely held religious beliefs, the possibility for a corporation to succeed in asserting insincere beliefs to discriminate and deny medically necessary services to transgender individuals is a dangerous consequence inconsistent with RFRA's original purpose.

    Part V will analyze the differences between challenges to Section 1557 relating to transgender health care and the precedent established by Hobby Lobby. Specifically, I will argue that the reasons set forth in Hobby Lobby for allowing closely-held corporations to evade the contraceptive mandate do not apply to denying various health services to the transgender community. Transgender health care involves additional access and cost complications that access to contraceptives at no charge does not, which should affect how future cases are decided.

    Part VI will analyze the current tumultuous state of politics and policy in the United States, specifically regarding the future of health care. This section will also discuss future Supreme Court decisions (24) and the Trump Administration's policies towards the LGBT community and advocates of religious freedom. Finally, Part VII of this Note will highlight recommendations regarding how to best reconcile religious freedom with the transgender community's need access to medically necessary services.

  2. DISCRIMINATION AND DISPARITIES FACED BY THE TRANSGENDER COMMUNITY IN UNITED STATES HEALTH CARE.

    Transgender and gender-nonconforming individuals have endured a long history of discrimination in health care, causing a number of health disparities to arise. Additionally, the medical profession has historically implemented practices hostile to the transgender community, which has often discouraged this population from seeking necessary health services. This Part explores the factors and resulting disparities that have contributed to the current state of transgender health.

    1. Health Disparities in the United States Transgender Population

      In 2016, The National Center for Transgender Equality released a nation-wide survey that it conducted in 2015. (25) The results of this survey are troubling, as health disparities prevalent in the transgender community span both physical and mental aspects of health and wellbeing. (26) Transgender individuals are almost eight times more likely to experience psychological distress than the general United States population. (27) Perhaps even more troubling is the higher-than-average rate of suicide attempts or suicidal thoughts in this population. (28) Forty percent of survey respondents reported attempting suicide, while 4.6 percent of the total U.S. population had done so. (29) Almost fifty percent of respondents reported experiencing serious thoughts about committing suicide in the past year--a rate over ten times higher...

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