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SF Reacts to Feds Promoting Bias in Health Care

by Seth Hemmelgarn

Acting HHS Secretary Eric Hargan
Acting HHS Secretary Eric Hargan  

San Francisco officials are saying the city will ensure transgender people and others continue to receive health care as advocates across the country criticize the Trump administration for saying recently that it will allow providers to use their religious beliefs to discriminate and refuse services.

In a January 18 news release, the U.S. Department of Health and Human Services announced the a new unit that will be called the Conscience and Religious Freedom Division in the agency's Office for Civil Rights.

"Laws protecting religious freedom and conscience rights are just empty words on paper if they aren't enforced," stated OCR Director Roger Severino. "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."

Acting HHS Secretary Eric Hargan said, "President Trump promised the American people that his administration would vigorously uphold the rights of conscience and religious freedom. That promise is being kept today."

In a statement last Thursday, then-San Francisco acting Mayor London Breed was among those who came out swiftly against the new federal division.

"By allowing medical providers to deny critical care based on personal ideology, the Trump administration is once again sanctioning widespread discrimination," said Breed. "This is not an issue of religious freedom. It is another thinly-veiled attack on the health and well-being of women and LGBTQ communities."

Breed continued, "Access to preventive and necessary health services is a basic human need. ... San Francisco is proud of our culture of inclusive and comprehensive health care, regardless of gender identity and expression, sexual orientation, ethnicity or socioeconomic status. We will continue to promote these values and ensure that all who need services are able to access them."

In an emailed comment to the Bay Area Reporter, Department of Public Health Director Barbara Garcia, who's a lesbian, stated, "We will continue to focus on the care and well being of all of our community members. The San Francisco Health Department resists efforts to divide our community and will continue to ensure equal access for all, especially our most vulnerable populations, which includes LGBT residents."

DPH spokeswoman Rachael Kagan couldn't say whether the health department would ask doctors applying for positions, including those at the city-run Zuckerberg San Francisco General Hospital, whether they would use their religious beliefs as a reason not to see patients.

"We aren't going to comment on the specifics you asked about in terms of applying - or not applying - the new rules," said Kagan in response to an email. "It's too early. We haven't seen anything yet and we are not able to speculate."

Clair Farley, the mayor's senior adviser on transgender initiatives, said in a statement, "San Francisco is a leader in transgender health care for our residents and city employees. Despite the administration's ongoing attacks on women and the LGBTQ community, we will continue to provide comprehensive and inclusive health care. When seeking medically necessary care, all communities deserve access to safe and equal treatment without the threat of being turned away."


State reaction

Other LGBT advocates in California also criticized the Trump administration's move and pledged to defend LGBT patients and others.

Kris Hayashi, executive director of the Oakland-based Transgender Law Center, stated, "This extreme new HHS rule will quite possibly cost lives by giving medical providers cover not to treat people they disagree with, no matter how life-threatening or urgent the medical need. The rule grants an illegal license to discriminate against transgender people who come to the doctor or emergency room for help when our lives are in danger due to sickness, violence, or injury.

"It's also an attack against all people, including many in the transgender community, who rely on critical care ranging from reproductive services to emergency services to HIV medication," Hayashi added. "Once again, the Trump-Pence administration has shown they will do everything in their power to undermine the health and survival of transgender people. We will see them in court."

Equality California Executive Director Rick Zbur called the move "a direct assault" on LGBTQs.

"This new rule would allow medical providers a 'license to discriminate' against patients if they disagree with their sexual orientation or gender identity," stated Zbur. "The ability to access transition-related care, HIV medication, reproductive services and other necessary medical services are all under threat. ... California has some of the nation's strongest non-discrimination protections under the Unruh Civil Rights Act. In the coming days and weeks, we will work with our legal colleagues, the California Legislative LGBT Caucus and our allies in California Legislature to determine whether legislation or litigation is required to combat this new attack on the LGBTQ community."

In response to a B.A.R. email, the state attorney general's office pointed to the agency's website, which says, "Recognizing that discrimination has no place in our society, Attorney General [Xavier] Becerra is fighting to protect transgender students and adults across the nation, and strictly enforcing the recently enacted California law that prohibits state-funded travel to states that discriminate against LGBTQ communities. In Congress, Becerra was a proud member of the LGBT Caucus and vocal supporter of marriage equality. In 1996, he was one of just 67 Congressional members to oppose the Defense of Marriage Act. As attorney general of California, he continues to champion the rights of the LGBTQ community."

In its email, the agency added that it has "participated in significant cases to combat discrimination based on sexual orientation by business establishments, including North Coast Women's Medical Group v. Superior Court (2008). ... In that case, the attorney general filed a friend-of-the court brief in the California Supreme Court in support of a woman who was reportedly refused fertilization services by a medical practice because she was an unmarried lesbian. The medical practice asserted that its actions were protected by the constitutional right to free exercise of religion. The attorney general's brief argued that a religious objection defense is unavailable in a state civil rights enforcement action under the Unruh Civil Rights Act. The California Supreme Court agreed, unanimously holding that physicians do not have a constitutional right to discriminate based on sexual orientation in violation of the Unruh Civil Rights Act, even if the discrimination is based on their religious beliefs."

In an email to supporters, California Senator Kamala Harris (D) said, "I am furious that the Trump administration is about to release rules that would grant health care workers the license to discriminate against women seeking an abortion and transgender patients in need of care.

"It's discriminatory, wrong, and fundamentally un-American. These rules could lead to people being denied life-saving health care. We have to fight back," she added.

Harris included the link to an online petition opposing Trump's plan (http://bit.ly/2DxuqlC).

An HHS spokeswoman didn't respond to a request for comment Monday afternoon, just as the federal government was working to start up again after the weekend shutdown.

To file a complaint with the HHS Office of Civil Rights based on a violation of civil rights, conscience or religious freedom, or health information privacy, people can go to https://www.hhs.gov/ocr/complaints

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