Today's Crusades: A Therapeutic Jurisprudential Critique of Faith-Based Civil Rights in Health Care

Abstract

During the Crusades, Pope Gregory VII encouraged action against a demonized population, those practicing Islam, in the name of faith. Today, an important leader, the President of the United States, acting through Executive Branch agencies, supports discrimination against transgendered individuals in the name of faith with the same fervor. Two such attempts within health care provide opportunities for reflection and correction. Most recently, HHS has proposed eliminating protections for transgendered individuals in regulations guiding enforcement of section 1557 of the ACA, which was enacted to ensure that no American should have to endure discrimination on the basis of race, color, national origin, disability, age, or sex in the provision of health care. The HHS also has promulgated a final rule that purports to permit health care providers, without qualification, to refuse to provide many services to not only this population but also several other vulnerable groups based on religious beliefs.

This Article demonstrates that the Administration’s animosity toward medical care for transgendered individuals is psychologically anti-therapeutic and reduces the quality of medical care that population receives, resulting in a public health crisis. First, the Article will review the Administration’s relevant rulemaking activities and the controversy surrounding them, focusing on the discrimination that the regulations encourage against transgendered individuals. Second, it will explore the psychological effects (and some of the relevant physical health considerations) of such discrimination on the patients affected. Finally, it will apply therapeutic jurisprudence principles to demonstrate how accounting for the psychological impact of discrimination by incorporating medical ethics into conscience clause enforcement would better serve individuals’ and the public’s health. These Crusades must stop.

Keywords: health law, psychology, therapeutic jurisprudence, transgender, transgendered individuals, civil rights, conscience clauses

JEL Classification: I1, I10, I14, I18, K10, K19, K23, K32, Z18