Catholic Hospitals Don't Have a License to Discriminate
The California Court of Appeal recently ruled 3-0 that our client Evan Minton can pursue his discrimination case against the Sacramento-area hospital that in 2016 denied him access to surgery just because he’s transgender. Although this is an important victory for Evan, it also marks a big step in the broader journey toward justice in health care.
Across the country, transgender people face barriers to the health care they need, including treatments related to gender affirmation. Many Catholic hospitals continue to deny patients access to transition-related care, while Catholic facilities’ share of the hospital market continues to grow. The ACLU is working hard to shine a light on the harm and discrimination occurring in Catholic hospitals and fighting in the courts to end it.
In California, religious restrictions on health care continue to present a significant and growing threat. ACLU affiliates in California currently have two lawsuits against Catholic hospitals for denying health care to trans people, as well as a third challenging Catholic hospitals’ refusal to allow patients to obtain tubal ligations, known as getting one’s tubes tied, after giving birth.
Lawyers for the Catholic hospitals argue that religious freedom gives them the right to pick and choose who they treat in their hospitals—in plain violation of state nondiscrimination law. For the first time, the court specifically confirmed that Catholic hospitals are not exempt from these laws: that they, like all other businesses open to the general public, cannot turn away someone just because they are transgender.
After coming out as a trans man, Evan determined, in consultation with his health care providers, that he needed surgeries to affirm his male identity. Like many transgender people, he encountered insurance coverage challenges and other obstacles to health care, but by August 2016 he was under the care of a supportive surgeon, Dr. Lindsey Dawson, who was scheduled to perform his hysterectomy at Mercy San Juan Medical Center. Two days before the surgery, Evan spoke with a nurse at the hospital about pre-operative expectations and mentioned that he uses male pronouns.
The next day, Mercy’s management notified Evan’s doctor that his procedure was cancelled. When Dr. Dawson called back to clarify what was going on, since she frequently performs hysterectomies at the hospital for cisgender women, she was told that she would “never” be allowed to perform a hysterectomy for Evan at Mercy, because it is a Catholic hospital that interprets Catholic Ethical & Religious Directives to prohibit gender-affirming hysterectomies. Upon hearing of the cancellation, Evan was so upset that he sank to the floor, distraught.
Fortunately, after fierce advocacy by Dr. Dawson, Evan, and others acting on his behalf, Evan was able to reschedule his procedure at a different hospital across town that did not subscribe to the Catholic directives. However, he was deeply hurt by the experience, and wanted to prevent the kind of discrimination he had experienced from happening to others.
In the spring of 2017, Evan, through his legal team at the ACLU and the law firm of Covington & Burling LLP, filed a discrimination lawsuit against Dignity Health, the owner of Mercy San Juan Medical Center (and, due to a recent merger with another Catholic system, now the largest nonprofit hospital chain in the United States). Dignity Health defended itself by arguing, among other things, that it had addressed Evan’s medical needs by allowing him to have the hysterectomy at another Dignity Health hospital which is not Catholic. Dignity Health’s lawyers additionally argued the hospital had a right to violate California’s nondiscrimination law, if it deemed that law to be in conflict with its religious beliefs.
Although a lower court accepted these arguments, the appellate court this week resoundingly rejected them, recognizing that being denied care and then sent across town can’t possibly constitute the “full and equal access” California law requires businesses to provide transgender people:
When his surgery was cancelled, he was subjected to discrimination…it cannot constitute full equality under the Unruh Act to cancel his procedure for a discriminatory purpose, wait to see if his doctor complains, and only then attempt to reschedule the procedure at a different hospital. “Full and equal” access requires avoiding discrimination, not merely remedying it after it has occurred.
The court also dispensed with Dignity Health’s argument that Evan should not be allowed to pursue discrimination claims because of Mercy’s Catholic affiliation. Referring to a prior case about access to contraceptives, it noted:
The [California] Supreme Court, applying a strict scrutiny analysis, held that any burden the Unruh Act places on the exercise of religion is justified by California’s compelling interest in ensuring full and equal access to medical treatment for all its residents, and that there are no less restrictive means available for the state to achieve that goal.
Issuing its forceful decision just a week after oral argument, the Court of Appeal seems to have seen these as easy questions. Evan’s case will now return to San Francisco Superior Court, where the discovery process will allow him to present evidence confirming his experience of traumatic rejection and allow his lawyers to question Dignity Health about its practices. We look forward to completing these steps and securing justice for Evan.
Meanwhile, the Court of Appeal decision in Evan’s case has already impacted another case we’re pursuing on behalf of Oliver Knight, a transgender man who experienced a sadly similar last-minute cancellation of his hysterectomy at a Catholic hospital, St. Joseph’s of Eureka. Based on the Minton decision, St. Joseph’s withdrew arguments it had made to the court that it should win without any fact-finding in the case.
We’re glad we are able to pursue Evan’s and Oliver’s cases in court, but we know many more people regularly experience discrimination and denial of care in Catholic hospitals. To learn more about the issue of religiously motivated health care denials in California, and to share stories of your own, please check out www.allcareeverywhere.com. We stand in solidarity with the ACLU advocates and others across the country fighting so many different battles to ensure safe, affordable, and respectful health care access for every transgender person.
Elizabeth Gill is a Senior Staff Attorney with the ACLU of Northern California and the National ACLU’s LGBT & HIV Project.