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Shawn Markus Crincoli, "Transgender Health Care & Religious Exemptions in Post-Hobby Lobby America "


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Religion and medicine have historically gone hand in hand, but increasingly have come into conflict in the U.S. as health care has become both more secular and more heavily regulated. Law has a dual role here, simultaneously generating conflict between religion and health care, for example through new coverage mandates or legally permissible medical interventions that violate religious norms, while also acting as a tool for religious accommodation and protection of conscience.

This conference identified the various ways in which law intersects with religion and health care in the United States, examined the role of law in creating or mediating conflict between religion and health care, and explored potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation.

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Shawn Markus Crincoli, "Transgender Health Care & Religious Exemptions in Post-Hobby Lobby America "

  1. 1. Transgender Health Care & Religious Exemptions in Post-Hobby Lobby America Shawn Markus Crincoli Associate Professor of Law Touro College Jacob D. Fuchsberg Law Center
  2. 2. Presentation Overview Transgender Health Care Rights vs. Religious Objections ›  Transgender health care ›  Religious perspectives and beliefs re: transgender people ›  Categories of objections & post-Hobby Lobby expansion for refusal or exemptions 2
  3. 3. Transgender Health Care Defined TRANSITION-RELATED CARE ›  Mental health treatment or services ›  Hormone treatment –  Cross-sex hormones –  Puberty suppressing hormones ›  Surgical treatment –  Facial –  Chest –  Genital ALL OTHER CARE OF TRANS PEOPLE – MINDS AND BODIES ›  Every other form of health care* –  Includes all body parts of trans people that require screening or treatment –  Includes all mental health issues not related to transition *Most discrimination that transgender people face in health care occurs in this category 3
  4. 4. Barriers to Care ›  Lack of health insurance ›  Denial of health insurance coverage for medically necessary treatment not transgender-related ›  Denial of coverage for transgender-related care even when covered by insurance policy ›  Explicit coverage exclusions for transition-related treatment ›  Ineffective care due to lack of provider knowledge ›  Discrimination in care – refusal, harassment, violence 4
  5. 5. Sobering Statistics ›  28% postponed medical care when sick or injured due to discrimination. 48% due to inability to afford it. ›  19% refused care due to their transgender or gender non- conforming status, with even higher numbers among people of color in the survey. ›  28% subjected to harassment in medical settings and 2% were victims of violence in doctor’s office. ›  50% of the sample reported having to teach their medical providers about transgender care. ›  41% have attempted suicide. (Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, 2011) 5
  6. 6. Generalized Religious Perspectives ›  Correlation between negative views toward LGBT people and transgender people (but more negative toward T) ›  Correlation between religious affiliation and views that homosexuality is wrong or same-sex marriage should not be legal ›  Prevalence of religious affiliations in the United States Evangelical protestant or Catholic identified = 50% (Pew Research Religion & Public Life Project, 2007) 6
  7. 7. Sex Status versus Gender Identity Religious sex status = according to religion/God, is the individual: Male? Female? Other category? – What determines sex status? – Can this change from sex assigned at birth? (e.g. genotypic vs. phenotypic) – When does sex status matter? (gender expression, marriage, ministry or clergy, etc.) Gender identity = the innate sense of psycho-social being as male or female (or both or neither) 7
  8. 8. Conduct Prohibitions and Transition ›  Cross-dressing – “The woman shall not wear that which pertaineth unto a man, neither shall a man put on a woman’s garment: for all that do so are abomination to the Lord thy God.” (KJV, Deuteronomy 22:5) ›  Sterilization – “He that is wounded in the stones, or hath his privy member cut off, shall not enter into the congregation of the LORD.” (KJV, Deuteronomy 23:1) – Be Fruitful and Multiply! 8
  9. 9. Religious Exemptions or Refusals ›  Individual health provider – e.g., physician, nurse, pharmacist ›  Institutional health provider – e.g., Catholic-affiliated hospital ›  Insurance-plan offered by private employer – e.g., Hobby Lobby 9
  10. 10. Balancing Interests ›  Can government demonstrate compelling interest in stopping discrimination against transgender people in health care? –  Does a history of discrimination justify further discrimination or does history + ongoing discrimination undermine government position? ›  What is harm to transgender individual from expansion of rights for religious exemptions? ›  What is burden to religious liberty from mandated health care for transgender people? 10