Being lesbian, gay, bisexual, or transgender is not a disease. It took a long time, but nearly all medical organizations now agree that queerness is not a “sociopathic personality disturbance,” as the American Psychiatric Association once maintained.
“Nearly all” is an important caveat, though. There are still a few organizations—which most doctors and scholars would likely consider part of the fringes of medicine—that challenge this view. Some are dissenting offshoots of mainstream associations. Others are the de-fanged descendants of ex-gay-therapy groups. They’re often accused of outright bigotry, but these doctors tend to frame their dissent differently, placing an emphasis on “choice.” Patients have a right to choose a therapist who will help them with unwanted same-sex attractions or feelings of gender dysphoria, they say. And physicians and therapists have a right to choose not to provide treatments that conflict with their religious beliefs. These treatments might include sex-change operations, hormone-replacement therapy for transgender people, fertility treatments to same-sex couples, or counseling for patients who are in non-heterosexual relationships.
Some legislators agree. In the first week of April, Mississippi passed a new law making it expressly legal for doctors, psychologists, and counselors to opt out of any procedure or choose not to take on any patient if doing so would compromise their conscience. The law is specifically designed to protect medical professionals who object to gay marriage and non-marital sex. Tennessee’s general assembly just passed a similar law, which would only apply to counselors, and a now-dead Florida bill would have protected religious health-care organizations from having to “administer, recommend, or deliver a medical treatment or procedure that would be contrary to the religious or moral convictions or policies of the facility.”
This legislation is part of a wave of religious-freedom bills that have been introduced and passed in the past year or so, almost all inspired by objections to homosexuality and same-sex marriage. Some of these measures are just for show—pastors could never be legally compelled to perform a gay-marriage ceremony in the way some bills have suggested, for example. But some represent a relatively novel approach to religious-freedom legislation: They offer legal cover to people of faith who don’t want to provide certain goods or services to LGBT people, especially when doing so might seem like a tacit endorsement of their relationships and sex lives.
Medical exemptions, though, deserve to be considered in a category of their own. Doctors and therapists interact with people at their most vulnerable, and their training and expertise gives them incredible power over patients. The advice they provide—or refuse to provide—to an LGBT patient could influence the treatment that person seeks. It could make that person less likely to seek primary care or identify themselves as LGBT to other doctors, which can lead to the “failure to screen, diagnose, or treat important medical problems,” according to the American Medical Association. The medical community has a problem: What should hospitals, private practices, and medical associations do about doctors and therapists who say it’s against their beliefs to provide care to LGBT patients?
Paul Church is an evangelical Christian who attends services at a Congregationalist church in Massachusetts. He’s a urologist—a surgical specialty focusing on pelvic, urinary-tract, and male reproductive disorders—and has been practicing as a staff doctor and affiliate of various Boston hospitals for nearly three decades. He even had a joint appointment as an assistant clinical professor at Harvard Medical School. After coming into conflict with staff over statements he made about homosexuality, he lost his privileges at two area hospitals, effectively ending his ability to perform surgeries.
As Church tells it, the fight started when he circulated comments on the hospital’s internal-communications network—a kind of company intranet. “I was taken aback that a hospital was engaging in, especially, promotions for the gay-pride parade,” he said. “All sorts of sordid, vulgar things go on in it.” Church claims that a number of doctors employed by or affiliated with the hospital objected to its open support of Pride and other LGBT cultural events. “I took up a letter-writing campaign to the leadership, and I was taken aback that they accused me of harboring some kind of discrimination,” he said.
A spokesperson from one of the hospitals, Beth Israel, wouldn’t confirm why Church’s privileges were revoked, but she did point me to the hospital’s harassment policy, which prohibits “verbal or physical conduct that denigrates, belittles, or shows hostility or aversion to an individual” because of, among other things, that person’s “sex, sexual orientation, [or] gender identity.”
Church framed his objections to homosexuality in moral and religious terms, but he also argued that he has a medical obligation to talk with gay patients, for example, about the risks associated with men having sex with other men. “We are supposed to counsel patients about self-destructive habits like smoking and overeating,” he said, “but we’re not supposed to place any judgment on behaviors that involve these sexual practices, for fear that we’ll be accused of being discriminatory or bigoted.”
Most mainstream medical associations would likely agree that physicians should advise their patients about risks associated with specific sexual behaviors. Men who have sex with men, for example, face higher rates of HIV and other STDs and have a greater risk of depression compared to other men. But there’s a difference between acknowledging risks and condemning the choices that lead to those risks—or the people who make them. In its ethics guidelines, the American Medical Association states, “Physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, sexual orientation, gender identity or any other basis that would constitute invidious discrimination.” While it allows that some doctors may object to performing certain procedures—such as providing fertility treatment to a same-sex couple—“a physician’s freedom to act according to conscience is not unlimited,” said Jesse Ehrenfeld, a doctor who co-directs the LGBT health program at Vanderbilt and was the first openly gay member of the AMA’s board of trustees. “We have a professional obligation, and when we have a specific ethical policy that prohibits discrimination, we expect physicians will adhere to that.”
Church resigned his membership in the AMA based on its positions on LGBT issues. He’s now involved with an organization called the Alliance for Therapeutic Choice and Scientific Integrity, a former gay-conversion-therapy group known as NARTH that reconstituted itself in 2014. A long-time member of its board, Michelle Cretella, is also the president of the American College of Pediatricians, a group that broke off from the American Academy of Pediatrics in 2002 in protest of the organization’s support of adoption by same-sex couples. These groups are part of a small network of medical-professional associations that have formed largely in opposition to mainstream groups like the AMA. They say, like the Mississippi legislature, that physicians should have the choice to not participate in a procedure that violates their conscience.
In the context of medicine, this is a messy moral claim. Doctors constantly encounter patients who might not live in ways they agree with. Treating those patients is not the same as endorsing their behavior; the point of medical care is not to pass judgment, but to help people be healthy. That’s the central question in these conscience exemptions: When does providing medical advice become a moral act? For Cretella and others like her, the context—sex and sexuality—seems to be the defining factor. “Physicians who do not wish to celebrate LGBT behaviors—that does not make them anti-gay,” she said. “We do not see ourselves as fighting an LGBT community. We see ourselves as fighting a dictatorship of political correctness.”
In certain ways, conscience-based exemptions for people in mental-health professions are even more complicated than those for medical doctors. For one thing, the field is much less centralized than medicine. Many people who provide counseling services aren’t professional psychologists or psychiatrists. A number of different organizations offer certifications and training in counseling, and licensing standards vary widely state by state.
More importantly, medical doctors primarily focus on patients’ bodies. Counselors and psychologists focus on their minds and emotions, talking about everything from relationships to impulses and desires. There are a lot of good reasons—many of which have nothing to do with gender and sexuality—why a therapist might decline a patient relationship: a personal conflict, for example, or a case that goes beyond his or her expertise. Referrals are a central feature of the profession. In dealing with lesbian, gay, bisexual, and transgender patients, though, the line between discrimination and intellectual freedom can be blurry. Take this analogy: “No one really thinks I’m discriminating against you when I say I don’t want to be your bankruptcy lawyer because I know nothing about it,” said Robin Fretwell Wilson, a law professor at the University of Illinois. “But I may have particular religious difficulty with counseling you on something that I think is going to send you straight to hell.”
“There are a range of attitudes toward some of those populations that different people grapple with in different ways,” said Clinton Anderson, the director of the LGBT concerns office of the American Psychological Association. “Some of those issues do have a foundation in people’s personal religious beliefs.” Yet, the APA’s ethics guidelines bar “unfair discrimination” and harassment on the basis of sexual orientation and gender identity. They also require psychologists to get the education they need to work with LGBT populations and encourage them to “eliminate … biases” they might have toward these groups. These guidelines are professionally binding, meaning the APA can censure member psychologists who violate the rules.
Many states directly incorporate ethics codes provided by organizations like the AMA or APA into their laws on licensing and conduct. That may be part of why some legislators feel the need to carve out explicit exceptions for religious people in these professions. The Tennessee Counseling Association has said the state’s exemption bill, which applies only to counselors and not psychologists, is unnecessary, bad for clients, and harmful to the profession. “When we choose health care as a profession,” the organization said in a statement, “we choose to treat all people who need help, not just the ones who have goals and values that mirror our own.”
Even though the recent wave of LGBT-related laws is new, religious-exemption clauses for health-care providers are not. “Marriage-conscience clauses are an idea from abortion-conscience clauses,” said Wilson. Almost immediately after the Supreme Court ruled in Roe v. Wade in 1973, Congress passed an amendment to an existing health-care law clarifying that even hospitals and facilities that receive federal funding don’t have to provide abortions or sterilizations if they have religious or moral objections to doing so. A number of states later adopted their own conscience clauses as well.
LGBT exemptions, though, could have a fatal flaw: They may conflict with federal law. The Affordable Care Act prohibits sex discrimination in any program or facility that gets federal funding for health-care services, which includes Medicaid. Effectively, that means the rule applies to nearly every hospital, insurer, and private practice in the country, although it’s not clear whether it applies to religious organizations, according to Wilson. The Department of Health and Human Services interprets gender-identity discrimination as part of sex discrimination and has enforced the rule with that in mind, initiating a number of investigations into complaints against medical providers related to harassment of and lack of coverage for trans people. That interpretation is not expressly written in the law, though. And discrimination on the basis of sexual orientation is not currently banned for all doctors and health-care providers; a proposed update to federal guidelines on that topic is pending.
What this means is that if a doctor in Mississippi refuses to provide fertilization treatments to a husband and wife, and one spouse is transgender, that couple could theoretically sue the doctor for violation of federal law. The particularities matter: The doctor would have to receive money from Medicare, Medicaid, or some other federal source, and the treatments would have to be eligible for coverage. But the potential for these kinds of cases—and litigation—is high.
For the conservatives who advocate these kinds of laws, the parallel between abortion-related exemptions and LGBT-related exemptions seems direct: Health-care providers should have a way to get out of performing procedures or providing advice they find morally problematic, they say. Plus, “there are many patients that want to be able to choose a pro-life doctor or a religious hospital or a mental-health counselor who integrates their emotional and spiritual health together,” said Matt Bowman, a lawyer at Alliance Defending Freedom, an advocacy firm that litigates religious-freedom cases largely on behalf of Christians. Particularly for some religious conservatives, finding a therapist who shares their values, for example, may determine whether or not they seek help at all. “Conscience protections are pro-choice in the best sense. They allow different options, different perspectives on health.”
The question is whether the alleged advantages of choices in the health-care market outweigh the potential harms of discrimination. In some ways, conscience exemptions for doctors, psychologists, and counselors seem to be in the same spirit as other kinds religious-freedom protections: Individuals or organizations express a sincere moral conflict with a legal obligation; where possible, the law finds a way to accommodate those objections. Compared to new laws that would protect wedding-related businesses, though, medical professionals have a lot more power over the people they provide services to. “When we’re talking about doctors or counselors, we are talking about people who are much closer to the patients, in situations that are much more intimate and private and confidential,” said Elizabeth Sepper, an associate law professor at Washington University in St. Louis. “The harm of discriminatory denial in those circumstances can be really severe in that one makes oneself vulnerable to one’s doctor or one’s counselor in a way that you might not when you’re coming into a bakery.”
Plus, doctors and therapists are experts, trained to provide a service that people need to stay alive and healthy. In getting into those fields, people involved in medicine and mental health are arguably committing to making their personal convictions secondary to their occupational obligations. “These are professionals you direct yourself to because they have the imprimatur of the state,” said Wilson. “They have a medical license. It’s the state saying they have a sufficient amount of quality, in theory, to be in the marketplace of providers.”
That word—marketplace—is at the heart of the debate over LGBT conscience exemptions. Supporters of the exemptions see goods and services like cake baking and medical procedures like fertilization treatment as similar in kind; people should be able to provide and seek them out on their own terms. Individuals and organizations, not the government, they argue, should set the parameters around what is and is not morally acceptable. “It’s a notion that you’re not discriminated against—you’re not harmed—as long as someone else will serve you,” said Sepper. “Of course, by that logic, so what if you had to ride on the back of the bus? You still get to your destination.” That’s the weakness of the free-market argument: It focuses more on the people who selectively want to tag out of interactions rather than those who are still struggling to fully tag in.
The idea that people can’t discriminate against others because of who they are—in terms of race, age, national origin, and more—has only been part of U.S. law for 51 years. Since the Civil Rights Act of 1964 was passed, cultural understandings of gender and sexuality have changed, and it’s not yet clear whether these characteristics will become fully integrated into federal and state discrimination law. Some progressives predict that LGBT issues will go the way of race, dissipating after initial resistance into nearly universal opposition to overt discrimination. But it’s also possible that LGBT conscience exemptions will become as standard as the legal exceptions around abortion—an area of health care where science hits the hard boundary of social mores and morality.
It’s more difficult to claim that LGBT conscience objections grow out of ambiguous science, though. For a long time, gay-conversion-therapy groups were the primary champions of a different kind of “choice” for doctors and patients dealing with same-sex attraction and “gender confusion”—they argued that people should be able to choose whether or not they identify as gay. These practices have been widely condemned by the health-care community and largely repudiated by their advocates, in part because they’re ineffective. For people who believe abortion is murder, there’s a clear, health-based case to be made for not wanting to perform the procedure—they see it as taking a life. The medical justification for refusing to treat LGBT patients is less clear. Trying to change people’s sexuality is bad science, and, arguably, opting out of care altogether is bad medicine.
The medical community has largely rejected practitioners who are unwilling to accept LGBT patients in the fullness of their identity. This probably does have a silencing and exclusionary effect on some doctors, therapists, and patients, which is what laws like the one in Mississippi are trying to address. But freedom in medicine is not like freedom in every other sphere of public life. Physicians are not bound to act according to conviction. They are bound to do no harm.