“Today, in France, we still cannot live and love freely just as we are,” said Joël Deumier, president of the association SOS Homophobie. In its annual report published May 10, 2017, the organization stated it received 1,575 testimonies of anti-LGBT acts in 2016, an increase of nearly 20% compared with the previous year. It’s possible that the increase in reported incidents reflects a greater willingness of victims to speak out. Still, SOS Homophobie believes that many victims of anti-LGBT acts do not dare come forward.

Demonstration in support of same-sex marriage in Paris, 16 December 2012.

© 2012 Olivier Hoffschir

In 2016, SOS Homophobie received 26 reports from people who said they had a homophobic, biphobic, or transphobic encounter with justice or law enforcement officials. By this is meant that an officer refused to characterize an assault as homophobic in a complaint or to even file a complaint, or that a law enforcement officer himself discriminated against LGBT people.

While these incidents remain thankfully limited, they are no less unacceptable. France should take measures to determine how widespread these attitudes are among public officials, and to prevent subversion of their duties because of this attitude.

SOS Homophobie’s report also shows a correlation between debates over equal rights and the increase of anti-LGBT acts. The organization recorded a spike in reported incidents in 2013, the year France legalized same-sex marriage. In 2016, France adopted a law waiving the requirement for transgender people to provide proof of medical treatment to amend their legal gender. That same year saw a 76% spike in reported transphobic incidents.

While a majority of the French population is in favor of allowing same-sex couples to get married and adopt children, opponents of LGBT rights are a “vocal minority,” and are especially active on social media, where prosecution for homophobic statements remains difficult to carry out.

Several candidates for the 2017 presidential election expressed their intention to “rewrite the Taubira law” on same-sex marriage and adoption. One candidate even received the support of Sens commun, an organization openly opposed to the rights of LGBT people. When political figures take stands that are hostile to equal rights, they may “rekindle hate.”

It is high time to end discrimination against LGBT people and the French authorities have a key responsibility and role to turn this into reality.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

This week Poland’s parliament has the chance to improve the lives of transgender people by passing a law that simplifies the legal gender recognition procedure.

Recognition before the law in your preferred gender is a vital aspect of ensuring respect for the human rights of transgender people. For example, it allows transgender people to access services on an equal footing with their peers.

Transgender activists march in the 2015 Warsaw Pride holding a banner that reads "YES to Gender Accordance Act.”

© 2015 Trans-Fuzja

Momentum on this matter is building. Earlier this year, the Parliamentary Assembly of the Council of Europe issued a resolution noting “the emergence of a right to gender identity”, while raising concerns that “transgender people face widespread discrimination in Europe.”

Members of Poland’s parliament will consider the country’s Act on Gender Recognition this Friday. Parliament already passed the draft legislation over the summer, although the president vetoed it last week.

The act proposes some important advances.

First, it defines gender identity as a “settled and intense experience of one’s own gender,” which may or may not correspond with one's sex assigned at birth.

Second, it eliminates the requirement for physical interventions before gender can be legally recognized, and instead makes the process a court procedure.

Third, it spells out the various documents on which applicants are legally entitled to change their gender – including education certificates, work qualifications, and health records – and allows the possibility for young transgender people, once they reach age 16, to change their name.

Access to documents in your preferred gender and name is a key element in ensuring respect for an individual’s right to personal and private life, and also allows transgender people better access to healthcare, education, and employment.

In a recent survey, 78 percent of Polish transgender people said quicker and easier legal gender recognition procedures would allow them to live more comfortably.

There’s no doubt President Andrzej Duda’s recent veto of the act was a setback. But if parliament does vote in majority support of the legislation, Poland will take a huge step forward and transform the lives of many.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Graeme Reid, director of the Lesbian, Gay, Bisexual and Transgender Rights Program, is an expert on LGBT rights. He has conducted research, taught and published extensively on gender, sexuality, LGBT issues, and HIV/AIDS.

Before joining Human Rights Watch in 2011, Reid was the founding director of the Gay and Lesbian Archives of South Africa, a researcher at the Wits Institute for Social and Economic Research and a lecturer in Lesbian, Gay, Bisexual, and Transgender Studies at Yale University. An anthropologist by training, Reid received an master’s from the University of the Witwatersrand, Johannesburg, and a PhD from the University of Amsterdam.

Posted: January 1, 1970, 12:00 am

A homophobic attack in a small village in southern Armenia has generated a public discussion about human rights in Armenia and a challenge to the new prime minister. 

Activists protest in front of General Prosecutor's Office in Yerevan to demand proper investigation of hate crime cases in Armenia, April 2018. 

© 2018 PINK Armenia

Last week, images of a bloodied face of a lesbian, gay, bisexual and transgender (LGBT) rights activist spread widely in Armenia – a victim of a mob attack in Shurnoukh village, where he and several others were guests at the home of fellow LGBT activist, Hayk Hakobyan.

According to Hakobyan, on August 3 at around 8 pm, a man from Goris city tried to force his way into Hakobyan’s house, eventually jumping the fence and arguing with Hakobyan’s nine guests, ordering them to leave.

A crowd of about 15 people were with the man, and it eventually swelled to about 30. They shouted homophobic slurs and threats, demanding that Hakobyan and his guests leave the village. Hakobyan and his friends fled the house and the crowd ran after them, hitting, kicking, throwing stones, and shouting “get rid of those gays” and “catch them and beat them up.”

A victim called the police, who arrived 90 minutes later, possibly due in part to the village’s remote location. Police took the victims’ statements and secured forensic exams. Six of Hakobyan’s friends were injured, one with bruises on the head and another with a broken nose. Police stated that they questioned several of the attackers, but they have yet to charge or arrest anyone.

Last April, Hakobyan was the victim of a homophobic assault in Goris. He reported it, but the perpetrators were never prosecuted. Hakobyan said one of the assailants was also among his recent attackers.

For years, the Armenian government has failed to effectively investigate anti-LGBT violence. The criminal code does not recognize anti- LGBT hate as an aggravating criminal circumstance, and a government bill on equality does not include sexual orientation and gender identity as a ground for protection from discrimination.

Homophobic comments in the Armenian media – including by public figures – colored the public debate on the attack. It’s hard to avoid the impression that some officials are using Armenia’s pervasive homophobia to mobilize the public against new Prime Minister Nikol Pashinyan, who embraces human rights including LGBT rights.

It won’t be easy for Pashinyan to stand by his principles, but that’s exactly what he should do. Indulging hate in the short-term while hoping for better times in the long-term has never succeeded.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Participants at the Trans Pride March on June 16, 2018 in Portland, OR, display a placard calling for stronger healthcare protections. 

© 2018 Alex Milan Tracy / Sipa USA / AP Photo

On a cold evening last January, I sat with Sandra in the living room of her apartment in Flint, Michigan, where she described to me how difficult it was to find health care as a transgender woman.

Sandra, whose name I’ve changed to protect her privacy, had been fired from her job when she started to transition, and had limited income. As she began to transition medically, she struggled with providers who expected her to teach them about transgender health. And she had to change providers when a trusted nurse practitioner moved to a practice that was hostile to LGBT people. She told me that although she urgently needed gender-affirming surgery, she had been unable to find a provider that would be covered by her insurance.

“I’ve been diagnosed with severe depression, suicidal tendencies, severe anxiety,” she told me. “And all they’re treating is my symptoms, and not my gender dysphoria, which is the root of all the issues and would be resolved with surgery.”

Stories like Sandra’s are not unique. But if the Trump administration proceeds with two regulatory changes, limited protections against discrimination in health care could soon become much weaker.

Over the past year, much of the debate about discrimination has focused on wedding services like cakes and calligraphers. Discrimination of any kind is hurtful and wrong. But in the health care field, discrimination puts people’s lives at risk. Nobody should be denied medical assistance because of their sexual orientation or gender identity, just like nobody should be refused service because of their faith.

As part of the Affordable Care Act, Congress declared that healthcare providers cannot discriminate based on race, color, national origin, sex, age, or disability. The Obama administration enacted a rule clarifying that sex discrimination includes discrimination based on gender identity and sex stereotypes, putting providers and patients on notice that those behaviors are prohibited by federal law.

A handful of states and religious providers sued the Department of Health and Human Services, claiming that the protections violated their religious liberty. In response, a federal judge in Texas issued an injunction, temporarily stopping the rule while the lawsuit continued.

Instead of defending these important nondiscrimination protections, though, the Trump administration has decided to weaken them.

First, Health and Human Services announced that it intends to roll back or rewrite the rule affirming the prohibition on discrimination against transgender people. This would send a terrible signal to providers and patients, suggesting that the agency does not take discrimination seriously or intend to act to stop it.

Second, the agency has proposed a new rule that would dramatically expand protections for providers who refuse to treat patients on religious or moral grounds. Traditionally, conscience protections in health care have been crafted to minimize harm to patients. They have generally been confined to specific procedures, like abortion, and give extra safeguards to religious objectors who might otherwise be required to perform those procedures.

The proposed rule would throw any semblance of balancing out the window. It would expand beyond the language enacted by Congress, with the agency pledging to protect a much broader range of healthcare refusals. And it could allow anyone with an “articulable connection” to a procedure – from administrative staff to technicians to maintenance workers – to decline to provide care.

These rules could be devastating for LGBT people, who already experience health disparities. Over the past year, I’ve interviewed dozens of LGBT people across the US about the daunting barriers they face in accessing health care.

Some were turned away by providers who decline to work with LGBT people at all. This is not only for services related to being LGBT – for example, hormone replacement therapy – but for services like mental health care, fertility treatments, even primary care visits.

Even when LGBT people were able to see providers, they often faced mistreatment. One man in Tennessee described how a provider had prayed over him when he went for an HIV test. He hadn’t gone back to that provider for testing again. Other people described being repeatedly addressed by the wrong name or pronoun, encouraged to stop being gay, or put on display for other staff to inspect.

When LGBT people fear discrimination, studies show they are less likely to seek out the care they need.

In recent years, both Mississippi and Tennessee have enacted laws that allow providers to turn people away because of the providers’ religious beliefs. As Persephone Webb, an activist in Knoxville, Tennessee, told me, “We see through this – we know this is an attack on LGBT people.” These sweeping refusals discourage LGBT people from seeking the care they need because they fear mistreatment.

The Trump administration’s rules have not been finalized – and they shouldn’t be. In the weeks ahead, the Department of Health and Human Services should withdraw these dangerous rules and affirm that patients come first.

If they don’t, Congress should step in to stop them. Congress is considering two long-overdue bills that would solidify the principle that discrimination has no place in health care. The Equality Act would prohibit discrimination based on sex, sexual orientation, and gender identity in a range of areas, including in establishments that provide health care. And the Do No Harm Act would help ensure that religious objections do not deprive patients of their access to medical care.

There’s still time to speak out. But if Health and Human Services proceeds with its reckless rulemaking, lawmakers should take responsibility to ensure that nobody is deprived of access to health care because of who they are.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

In June, Costa Rica’s president signed a directive and decree ordering government agencies that issue official documents to recognize gender identity based on self-declaration.

The move follows an Inter-American Court of Human Rights (IACHR) advisory opinion issued in January, which asserted that countries should establish efficient, inexpensive, and straightforward procedures to allow legal recognition based solely on the “the free and autonomous decision of each person.”

In recent years, in response to a strong push by transgender rights groups, countries around the world have developed policies on legal gender recognition rooted in deference to a person’s self-identification, rather than a determination by a government official, doctor, judge, or other authority.

Argentina was the first to do so with a 2012 law that is now seen as the gold standard for legal gender recognition. Anyone older than 18 in Argentina can choose their legal gender and revise official documents without judicial or medical approval; children can make the change through their parents or guardians, or a court.

In subsequent years, Colombia, Denmark, IrelandNorway, and Malta eliminated significant barriers to legal gender recognition based on self-identity. Courts in IndiaNepal, and Botswana have also called on governments to recognize gender identity, with some South Asian countries, the Netherlands, and some US states making progress on recognizing third gender categories.

Costa Rica is now part of this global change. People should not be forced to carry an identity marker that does not reflect who they are. Recognizing peoples’ self-identified gender, without forcing them to jump through bureaucratic hoops or be subjected to medical procedures, is not asking governments to acknowledge any new or special rights. Instead, it is a commitment to the principle that governments should not decide for people who they are.

Costa Rica’s move, which the government rooted in rights to dignity, non-discrimination, and equality, should inspire other governments around the region to heed the IACHR’s advisory opinion and uphold the rights of trans people to be themselves. 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Transgender people face discrimination and abuse from state officials and agents, including from public sector health workers, teachers, and local government administrators.

© 2014 Javad Tizmaghz for Human Rights Watch

Malaysia’s new government has put out a series of mixed messages on where it stands with regard to the rights of lesbian, gay, bisexual and transgender (LGBT) people.

On the one hand, the minister in charge of Islamic affairs in the new Pakatan Harapan government, Mujahid Yusof Rawa, has condemned bullying and workplace discrimination against LGBT people.

He has suggested that the Islamic authorities should abandon their preoccupation with trans people’s attire, an obsession that in recent years has prompted dozens if not hundreds of arrests of trans women under state syariah [sharia] laws, which criminalise “a male person posing as a female.” (Trans women are not “male persons,” but since Malaysia will not allow them to change their gender markers on their official documents, they are considered male under the law.)

On the other hand, on July 23, he asserted before Parliament that the government is concerned with the “worrying” “spread of the LGBT lifestyle” and told his critics not to “stand on the Friday pulpit and accuse the Harapan government of being friendly to LGBT.” And on July 29, according to media reports, he said the government would organise “camps” and “seminars” for LGBT people, reportedly adding that, “Parents need to be aware that this can be stopped from the beginning. We are ready to guide and help because we have the expertise.”

Human Rights Watch, in collaboration with the Malaysian trans rights organisation Justice for Sisters, has conducted research on the “camps” and “seminars” on LGBT issues that Malaysian Islamic development authorities, and some universities, have organised in recent years. Such programmes claim to do a harmful, unscientific, and impossible thing in the name of public health - “change” LGBT people’s sexual orientation or gender identity.

In April, we spoke to a number of LGBT Malaysians about efforts to change them, including through three-day retreats known as Mukhayyam, which have been organised by Jakim, the federal Islamic development department, and by state Islamic institutions since 2010. In the midst of pervasive anti-LGBT sentiment, Jakim justifies the Mukhayyam programmes in the name of public health outreach, and they do include sessions on HIV prevention.

But the Health Ministry’s 2016-2030 National Strategic Plan for Ending AIDS lists “giving spiritual awareness through a religious approach (tauhid) to face the challenges of life and abandon the practice of unnatural sex” as one of the objectives of the Mukhayyam programme. And gay and transgender people who took part in Mukhayyam told Human Rights Watch and Justice for Sisters that, in overt and subtle ways, the camps encourage them to “change.”

“Azim” (a pseudonym), age 27, who attended a Mukhayyam programme in December 2017 facilitated by the Islamic department in Kedah state, said that facilitators sought to stoke fears that LGBT people would go to Hell if they did not repent.

“To make us change,” he said, “they remind us about death. ‘Oh, when you’re dead, what happens?’” Azim said that in one activity, organisers covered the participants with a white cotton cloth used in Muslim funerals, lit incense to create a funeral atmosphere, played unnerving sounds, and asked participants think about their childhood and about death. “It made people start to cry,” said Azim.

Scare tactics

Other transgender people and gay men spoke about scare tactics at Mukhayyam programmes. Danisha, a 45-year-old trans activist who attended a session in Johor in 2015, told us that Jakim officials showed a video suggesting that trans women were responsible for natural disasters. She added, “If there’s a typhoon, it has nothing to do with me.”

“Anna,” a 35-year-old trans woman in Kedah, attended Mukhayyam in 2012 and was assured by a Jakim official that the goal wasn’t to change her. After she returned from the programme, a picture of her and other transgender women was published in the local paper implying that they had changed as a result of attending Mukhayyam, with the headline, “Trans women return to the right path.”

Jakim and the Federal Territory Islamic Affairs Department (Jawi) claim to have returned 3,000 LGBT people to the “right path,” or to cisgender, heterosexual norms. But pressuring LGBT people to “return” to the gender assigned at birth or heterosexuality is, by medical and psychiatric consensus, a harmful and impractical goal. Asking LGBT people to change increases stigma, blame, and social isolation, and can drive people away from crucial public health programmes.

Attempts to “change” LGBT people’s identities, and to frame some consensual sexual acts between adults as “unnatural,” have no place in public health or public life. The idea that LGBT people are sick has been widely discredited in the global field of psychology. The World Health Organization removed “homosexuality” from the International Classification of Diseases (ICD) in 1992 and “gender dysphoria” from the ICD in early 2018.

Any government programme or rhetoric that supports the idea of “changing” LGBT people gives credence to harmful conversion efforts that occur in health care, in the religious sphere, and even in schools and universities. These conversion efforts are pervasive and dangerous for LGBT Malaysians.

In April 2018, students at the Universiti Sains Malaysia organised an event that aimed to correct LGBT people and bring them “Back to Fitrah [Nature].” Jakim officials have advocated for anti-LGBT education in public schools. And transgender women describe being asked to change while accessing health care. “Aliya,” 39, described going to an HIV clinic in Penang that claimed to be friendly to transgender women. A member of the staff asked her, “How long are you going to be like this?” “This was in 2016,” Aliya said, “and I didn’t go any more.”

The Malaysian government should immediately cease all state-sponsored programmes aimed at “changing” LGBT people, and instead support organisations that provide affirming, competent health care and other services to people of all sexual orientations and gender identities. It should also seek to change laws that criminalise same-sex relations and transgender identities. Acceptance of LGBT people into health systems, communities, and civic life is a vital step towards a more vibrant, healthy Malaysia.

LGBT people do not need to find the “right path.” The Malaysian government does, when it comes to respecting their rights.

Author: Human Rights Watch, Human Rights Watch
Posted: January 1, 1970, 12:00 am

An opinion piece by Minky Worden about LGBT rights at the World Cup was removed from the Qatar edition of the New York Times

The government of Qatar should change its laws to end arbitrary censorship of articles about sexual orientation and gender identity and revoke its Penal Code provision that punishes same-sex relations with imprisonment between one to three years, Human Rights Watch said today. Qatar is host of the 2022 FIFA World Cup.

The private publishing partner of The New York Times, Dar Al Sharq, has repeatedly removed articles in the international print edition of The New York Times published in Qatar related to lesbian, gay, bisexual, and transgender (LGBT) rights. The Qatari government tells Human Rights Watch that it was not directly involved in censoring the LGBT articles, indicating that the blank pages are self-censorship based on what a publisher perceives as compliant “with the local cultural standards and expectations.” Censorship of media content because it relates to sexual orientation and gender identity violates freedom of expression when it discriminates against LGBT people.

The World Cup spotlight is exposing the Qatari government’s homophobia and its failure to uphold press freedom.

Minky Worden

Director of global initiatives

“The World Cup spotlight is exposing the Qatari government’s homophobia and its failure to counter this troubling climate of self-censorship,” said Minky Worden, director of global initiatives at Human Rights Watch. “Qatari authorities should reform the laws that create a chilling environment for the media and threaten LGBT people with criminal sanctions. If not, FIFA should call a foul.”

FIFA recognizes human rights as central to its operations in Article 3 and 4 of its statutes and its Human Rights Policy. According to FIFA’s Human Rights Policy, discrimination of any kind “is strictly prohibited and punishable by suspension or expulsion.” FIFA now requires countries applying to host the World Cup uphold minimum standards for human rights, including non-discrimination on the basis of sexual orientation.

In recent months, multiple articles about LGBT topics have been censored in the print Doha Edition of The New York Times, including: Larry Kramer’s article For Gays, the Worst is Yet to Come. Again, Elton John’s article, Life on the Margins in LGBT Africa, Shannon Sims’ A Fire Killed 32 at a New Orleans Gay Bar. This Artist Didn’t Forget, and an oped by Worden on LGBT rights and the World Cup.

The government of Qatar should change its laws to end arbitrary censorship of articles about sexual orientation and gender identity and revoke its Penal Code provision that punishes same-sex relations with imprisonment between one to three years. Qatar is host of the 2022 FIFA World Cup.

With each deletion, The New York Times publishes a notice that the LGBT text is “exceptionally removed from the Doha edition,” making the censorship clear. The New York Times wrote to Human Rights Watch it has printed and distributed its international edition in Qatar since 2007, and the decision to censor is taken at a local level by the relevant government entities or its independent printing and distribution vendor.

The New York Times told Human Rights Watch approximately “a dozen pieces have been altered or exceptionally removed since April, including references to alcohol, sexuality, and a Delacroix artwork in an advertisement. Where an article is exceptionally removed, we require the publisher to include a citation which includes the full, uncensored title of the piece, and clear signposting to the full article, which will always be available online.” The paper added, “while we understand that our publishing partners are sometimes faced with local pressures, we deeply regret and object to any censorship of our journalism and are in regular discussions with our distributors about this practice.”

Human Rights Watch wrote to Qatar’s Minister of Information and Communications, Dr. Hessa al-Jaber, and to Doha publisher Dar Al Sharq CEO Abdul Latif al Mahmoud, to clarify where responsibility lies for deletion of LGBT news. The Communications Office stated,

The government of the State of Qatar does not directly oversee, control, or limit the publication of The New York Times International Edition in Qatar. As you correctly note, the printing and distribution of international media is done by an independent company in Qatar. While their work is done with no input from the government, all media distributors are expected to comply with the local cultural standards and expectations of their readers and the community. The government is currently examining the issues recently raised around this local distributor, and we will inform you of necessary actions that are taken.

Dar Al Sharq’s Al Mahmoud responded that his company is subject to Qatar’s laws and therefore takes “a general editorial approach that avoids the publishing of anything that may be considered illegal, immoral or contrary to local rules and culture such as pornographic material or any material that could be deemed illegal under the law.”

Homosexual conduct is illegal in Qatar, and there are no anti-discrimination laws or government policies to address discrimination, or state-recognized LGBT organizations. While Human Rights Watch has not documented any prosecutions for same-sex conduct, the law criminalizing same-sex relations is discriminatory and menacing to LGBT people in Qatar.

When Qatar won the right to host the 2022 World Cup in 2010, then-FIFA President Sepp Blatter came under fire from athletes and LGBT fans for his public response to questions about protections for LGBT people: "I would say they should refrain from any sexual activities."

Human Rights Watch said that Qatar’s anti-LGBT laws contribute to stigma and discrimination that is wholly at odds with FIFA’s claims to elevate equality and human dignity.

Opinion pieces removed from Qatar's edition of the New York Times.

In response to reporting by ABC news on the censorship in Qatar, the government’s communications office promised to investigate the matter, adding: “The government will examine the issues around the local distributor and take corrective action if needed….. We look forward to people from all over the globe converging on Qatari soil – of different ethnicities, languages, religions, and cultures – uniting through a shared passion for football.”

In Qatar, journalists and printers operate under section 47 of the 1979 Press and Publications law, which bans publication of “any printed matter that is deemed contrary to the ethics, violates the morals or harms the dignity of the people or their personal freedoms.” Qatar is ranked 125 out of 180 on the Reporters Without Borders World Press Freedom Index. In recent years, Qatar has blocked independent news site Doha News, arrested, detained, and interrogated journalists from the BBC, Danish TV, and ARD for reporting and investigations around the World Cup.

Coverage of LGBT news is limited across the Gulf. Al-Jazeera, based in Qatar, publishes in English, Arabic, Spanish, and French, but publishes little to no content in Arabic about LGBT issues, with its most recent print article in Arabic about LGBT issues dating back to December 2004.

On July 2, Human Rights Watch notified FIFA about the blatant censorship of LGBT content in Qatar, which challenges its credibility on press freedom and LGBT rights. FIFA said it is investigating the deletion of LGBT articles.

Since Qatar is hosting the World Cup, it should play by the rules, Human Rights Watch said. FIFA’s Human Rights Policy reads: “Where the national context risks undermining FIFA’s ability to ensure respect for internationally recognised human rights, FIFA will constructively engage with the relevant authorities and other stakeholders and make every effort to uphold its international human rights responsibilities.”

Human Rights Watch calls on Qatar to change its press laws to allow media freedom, revoke its Penal Code provision that punishes same-sex relations, and to affirm that the government will not censor LGBT content and instead recognize it as important to core human rights values.  Human Rights Watch calls on FIFA to “constructively engage” to achieve this outcome in accordance with its policies.

“FIFA knows that discrimination and censorship seriously undermine the sport of football,” Worden said. “Now FIFA should demand that Qatar overturn its anti-LGBT law and uphold media freedom as important conditions of hosting the World Cup.”

Posted: January 1, 1970, 12:00 am

The Indian Supreme Court building in New Delhi, India. On January 8, 2018, the Supreme Court announced that it would revisit section 377 of India's Penal Code, which criminalizes consensual same-sex conduct. 

©2010 Reuters/B Mathur
 

In January, a colleague of mine at Human Rights Watch predicted that 2018 would be the “year of the courts” for LGBT people’s rights. Seven months into the year, courts around the world have indeed come down with important rulings that help secure those rights. Their decisions show that judges in many countries, with a range of different legal traditions, have come to agree that that LGBT people are legally entitled to equal treatment, dignity and fairness.

In April, a High Court in Trinidad & Tobago held that the country’s sodomy laws, which criminalized homosexual conduct, were unconstitutional. The judge wrote, “This is not a case about religious and moral beliefs but is one about the inalienable rights of a citizen under the republican Constitution of TT; any citizen, all citizens. This is a case about the dignity of the person and not about the will of the majority or any religious debate.”

In Lebanon, media reports indicate that the Mount Lebanon Appeals Court upheld in a July ruling the 2017 acquittal of nine people prosecuted for homosexual conduct. The Lebanese penal code bans sexual relations considered to be against nature, punishable by up to one year in prison. The appeals court reportedly found that this law should not be read as criminalizing homosexual conduct. The ruling was hailed by Lebanese LGBT activists as the first such ruling by a Lebanese appeals court, following several similar lower court rulings.

In Bermuda, the Supreme Court held in a June 6 ruling that sections of a recent law that revoked the right to same-sex marriage were invalid because they favored “one set of beliefs about marriage over another” and were therefore inconsistent with provisions in the Bermudan Constitution that guarantee the right to freedom of conscience and creed. The government has announced its intention to appeal.

In Poland, a printer refused to print a banner for an LGBT organization because he did not want, in his eyes, to “promote” the rights of lesbian, gay, bisexual, transgender, and intersex people.  The organization took him to court. The state prosecutor defended the printer’s position, but Poland’s Supreme Court in June upheld a lower court’s decision that the printer could not refuse to provide his services to the organization.

In Ecuador, in two separate cases, one brought by a lesbian couple and the other by gay men, judges ruled against the Civil Registry’s refusal to allow them to marry. Both judges cited in their rulings the advisory opinion of the Inter-American Court of Human Rights from January stating that governments “must recognize and guarantee the rights that are derived from a family bond between two people of the same sex.” The two judges ruled that the Civil Registry’s refusal to allow the couple’s marriages constituted a violation of the rights to equality and nondiscrimination based on the sexual orientation of the contracting parties.

In Chile, the president of the Supreme Court stated that the advisory opinion of the Inter-American Court regarding same-sex marriage rights is binding for Chile.

 In Europe, the European Union Court of Justice in Luxembourg ruled in June that the term “spouse” in a directive on the exercise of free movement under E.U. law is gender-neutral and therefore covers the same-sex spouse of an E.U. citizen. It emphasized that “although the member states have the freedom whether or not to authorize marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory.”

The E.U. Court of Justice ruling came from a case referred by the Romanian Constitutional Court about whether a gay Romanian-American couple were entitled to the same residency rights in Romania as other married couples in the European Union, even though Romania only recognizes civil partnerships rather than marriage between same-sex partners. Following the E.U. court ruling, the Romanian Constitutional Court ruled in July affirming that same-sex partners in Romania are entitled to the same E.U. residency rights as other married couples.  

Similarly, media reports indicate that in July an administrative court in Sofia, Bulgaria, decided that Bulgaria is not allowed to refuse a third-country national married to a European Union citizen of the same sex the right to live in Bulgaria even on the grounds that the Bulgarian law does not provide for marriage between persons of the same sex.

The issue of granting a visa to a same-sex spouse, married elsewhere, also came up in Hong Kong. The administration refused to grant a dependent visa to the same-sex spouse of a British and South African national who was admitted to Hong Kong to accept a job. The Court of Final Appeal of the Hong Kong Special Administrative Region ruled in July that the government can only refuse such a visa if it can provide  “particularly convincing and weighty reasons” to justify the difference in treatment between same-sex and different-sex spouses. Since the government could not meet this standard, the court ruled that the same-sex spouse was discriminated against because of her sexual orientation.

In the Netherlands, the Limburg district court of Roermond found in a June decision that the exclusive option of “male” or “female” on official documents, including birth certificates, is too restrictive. The court referenced precedent in India and Nepal and concluded that self-identification prevails over bodily appearance or medical status. The court suggested the Dutch legislature initiate legislation to ensure that gender-neutral self-identification is provided for under Dutch law.

In July, the Supreme Court of India began hearing a case that could strike down a 158-year-old colonial-era law that criminalizes same-sex sexual activity. Under Section 377 of the Indian Penal Code, sex "against the order of nature" draws a jail term and a fine.

India’s government has declined to take a position on the decriminalization of gay sex, leaving the a decision about whether to strike down the law entirely up to the country’s top court, requesting only that the court not address broader issues like equal marriage, inheritance, and adoption.

India has the second-largest population in the world, with more than 1.3 billion people. The Supreme Court’s ruling, expected soon, is highly anticipated in India and the rest of the world.

Of course, not all court decisions on LGBT rights in 2018 have been positive. For example, in Uganda in June, a court dismissed a case challenging the Uganda Registration Services Bureau’s refusal to register Sexual Minorities Uganda (SMUG), an organization that has long defended the rights of LGBT people in the nation. The court agreed with the respondents that SMUG was promoting “illegal behavior” and contended that both its name and its objectives were prejudicial to the public interest.

Courts cannot always be counted on to deliver justice for LGBT people, but LGBT activists and their allies are seeing the benefits of turning to the courts to get their fundamental rights recognized. They no longer accept the passivity of lawmakers who are supposed to represent them. They want to see the right to equal treatment and nondiscrimination secured. If the legislature is not yet ready to protect the rights of LGBT people, the courts can often help.

 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Tunisian authorities should adopt legislation based on the groundbreaking proposals made by a presidentially appointed commission aimed at protecting individual freedoms and eliminating discrimination against women. 

(Tunis) – Tunisian authorities should adopt legislation based on the groundbreaking proposals made by a presidentially appointed commission aimed at protecting individual freedoms and eliminating discrimination against women, Human Rights Watch said today. It also released a video that urges the Tunisian president to adopt the proposed legislative reforms.

The Commission on Individual Freedoms and Equality, in its report published on June 12, 2018, recommended decriminalizing sodomy and ensuring equality between men and women in inheritance, eliminating “morality” laws, and abolishing the death penalty.

“This is truly momentous. President Beji Caid Essebsi should seize this opportunity to introduce legislation that would make the human rights advances recommended by his commission the law of the land,” said Amna Guellali, Tunisia director at Human Rights Watch.

The president of the Commission on Individual Freedoms and Equality, Bochra bel Haj Hmida with President Beji Caid Essebsi during the handing of the Commission’s report.

© 2018 Commission on Individual Freedom and Equality

Essebsi created the commission on August 13, 2017, National Women’s Day. He tasked it with recommending “reforms linked to individual freedoms and equality, deriving from the provisions of the January 27, 2014 Constitution, international human rights standards and new trends in the fields of liberties and equality.” The nine-member commission is headed by Bochra Bel Haj Hmida, a member of parliament.

The commission identified provisions of Tunisian law that violate or undermine individual freedoms and equality. It recommended comprehensive reform of Tunisian legislation through the adoption of two new codes that would supersede regressive laws: A Code of Individual Rights and Liberties and an “Organic Law abolishing discrimination against women and children.”

The commission called the death penalty the ultimate violation of the right of the individual to bodily integrity. The Tunisian president and Assembly should take this opportunity to end the death penalty, once and for all, Human Rights Watch said. 

The commission recommended abolishing penal code article 230, which criminalizes homosexuality or, at a minimum, to replace the three-year prison sentence in the current law with a punishment not to exceed a fine of 500 dinars (US$192). It also recommended prohibiting anal testing, a discredited method used forensically in Tunisia to verify sodomy.

The commission recommended eliminating offenses relating to “public indecency” and “public offense to morals” and replacing them with laws to punish a person who “commits a sexual act in public and intends to reveal intimate parts of his body with the intent to harm others.” The commission observed that the concept of indecency is vague and prone to repressive interpretations.

It also proposed a repeal of an Interior Ministry directive dating to 1971 that prohibits cafés and restaurants from opening during Ramadan fasting hours as an affront to freedom of conscience.

On gender discrimination, it urged eliminating the provision in the personal status code, inspired by Sharia law, that provides a double share of inheritance for the male heirs. It also recommended an end to discrimination in conferring citizenship to foreigners who marry Tunisians. Under current law, a foreign wife is eligible for citizenship after living in Tunisia for two years while a foreign husband cannot obtain citizenship by marrying a Tunisian woman.

And the commission urged removal of the Personal Status Code provision that the husband is the “head of the family,” which gives him legal advantages in disputes over household management.

Some Tunisians expressed outrage at the proposals, claiming they threatened Islamic values.  Referring to the head of the commission, a well-known Salafist preacher wrote on his Facebook page that authorities should “bring the sinister team of Bochra in a public square and stone them to death to cleanse them and the country of their sins.”

A group of professors at Ezzeitouna, the country’s leading Islamic university, issued a joint statement warning that the report will “destroy the pillars of Islam and encourage debauchery.” However, other religious leaders from an association called “Union of Imams”, considered that the proposals do not contradict the Quran and the principles of Sharia and supported the report. 

Essebsi thanked the commission but has not announced yet any next steps on their recommendations.

“Tunisia has made important strides since toppling its dictator in 2011,” Guellali said. “By adopting the commission’s proposals, Tunisia will once again lead the Arab world, by placing the rights of the individual at the heart of its legal system.”

Posted: January 1, 1970, 12:00 am

Caster Semenya of South Africa, Charlene Lipsey of the United States and Lynsey Sharp of Great Britain compete in the Women's 800 metres semi finals during day eight of the 16th IAAF World Athletics Championships London 2017 at the London Stadium on August 11, 2017 in London, United Kingdom. 

© 2017 Getty Images/ Andy Lyons

(New York) – New regulations issued by the International Association of Athletics Federations (IAAF), the international governing body for athletic competitions, discriminate against some women athletes and should be revoked, Human Rights Watch said today in a letter to the IAAF.

The 2018 regulations, published in April, target women athletes with some intersex variations sometimes called “differences of sex development” that cause higher than typical natural testosterone levels. The regulations deny these women the right to participate in the female category for running events between 400 meters and the mile unless they submit to invasive testing and medically unnecessary “treatment”. There is no clear scientific consensus women with intersex variations who have higher than typical natural testosterone have a performance advantage in athletics.

“The IAAF Eligibility Regulations for the Female Classification discriminate against women on the basis of their sex and their sex characteristics,” said Liesl Gerntholtz, women’s rights director at Human Rights Watch. “Regulations that call for scrutiny of women’s naturally occurring hormone levels are at root a form of judgment and a questioning of women’s sex and gender identity.”

Intersex traits or variations are naturally occurring sex characteristics that appear in up to 1.7 percent of the population, but do not fit social norms of what is considered “male” or “female.” The vast majority of people born with intersex variations are healthy and do not need to undergo medical treatment unless they wish to alter their bodies.

The regulations, the Eligibility Regulations for the Female Classification (Athlete with Differences of Sexual Development), require women who have a naturally occurring blood testosterone level higher than five nmol/L to have medically unnecessary hormone therapy to reduce their testosterone levels if they want to qualify to compete in the female category. If women refuse to be tested or have hormone therapy, the regulations state that they may only compete in the male category or in a hypothetical, not-yet-created intersex category – both of which would expose women’s private sex characteristics to the global public.

The United Nations special rapporteur on the right to health, Dainius Pūras, has expressed concern that “international and national sporting federations have…introduced policies banning women with testosterone levels exceeding a certain threshold from participating in competitive sport.” He noted that “there is insufficient clinical evidence to establish that those women have a ‘substantial performance advantage’ warranting exclusion.”

The practice of non-consensual “normalizing” procedures conducted on and promoted for people with intersex variations, such as to reduce the size of the clitoris, change the size and shape of the vagina, and remove gonads – which alters naturally occurring hormone levels – has been debunked as unscientific, unethical, and a violation of international human rights law. The discriminatory treatment of female athletes with intersex traits in sporting events similarly runs afoul of fundamental rights protections, Human Rights Watch said.

“Women with intersex variations have the same rights to dignity and bodily integrity as all women,” Gerntholtz said. “But the new IAAF regulations coerce some women to undergo unnecessary medical intervention to alter their hormone levels simply because their naturally occurring testosterone is atypical.”

In 2011, the IAAF issued regulations that were very similar to the 2018 regulations. The Indian runner Dutee Chand challenged the regulations at the Court of Arbitration in Sport (CAS), leading to a 2014 judgment  that the 2011 regulations did “discriminate against women and discriminate based on a natural physical trait.” The court rightly noted that, “Such discrimination is, unless justified, contrary to the Olympic Charter, the IAAF Constitution and the laws of Monaco” and stated that “if the [testosterone] Regulations cannot be justified, specifically as a reasonable and necessary response to a legitimate need, then they should be declared invalid.”

In issuing new guidelines in response to the judgment, the IAAF included an explanatory note saying that “persecution or campaigns against athletes simply on the basis that their experience does not conform to gender stereotypes are unacceptable” and that the regulations are not “intended as any kind of judgement on or questioning of the sex or the gender identity of any athlete.”

But for women athletes with atypical testosterone levels, undergoing medical examinations can be as humiliating as it is medically unnecessary, Human Rights Watch said.

Following an examination of her eligibility based on a suspected intersex variation, the South African sprinter Caster Semenya stated: “I have been subjected to unwarranted and invasive scrutiny of the most intimate and private details of my being.”

The 2011 IAAF regulations relied on deeply problematic stereotypes such as having a “deep voice” to identify athletes with intersex variations, and the 2018 regulations make no mention of criteria for identifying these athletes – leaving the system open for abuse.

“Stigmatizing, stereotyping, and discriminating are intrinsic to the implementation of these regulations,” Gerntholtz said. “Identifying relevant athletes through observation and suspicion creates a situation in which women athletes’ bodies are scrutinized, while no such scrutiny is applied to men.”

Posted: January 1, 1970, 12:00 am

Child welfare agencies could be allowed to discriminate under a recent amendment to legislation pending before Congress that would threaten the rights of children in care.

(New York) – Child welfare agencies in the United States could be allowed to discriminate under a recent amendment to legislation pending before Congress. The amendment would also threaten the rights of children in care, Human Rights Watch said in a video released today.

The amendment would ban the federal government from withholding support from child welfare providers that refuse to provide services because of their religious or moral beliefs. The amendment would also apply to state and local governments that receive federal funding for child welfare services. It would make it much harder to stop agencies that receive federal funding from refusing to place children for adoption or foster care with lesbian, gay, bisexual, or transgender (LGBT) people, single or divorced people, people of a different faith, or anyone else they deem unacceptable based on the agency’s beliefs.

“The amendment is bad for prospective parents and bad for vulnerable children who need homes,” said Ryan Thoreson, an LGBT rights researcher at Human Rights Watch. “Congress should make it easier, not harder, for children to find loving, qualified families ready to take them in.”

The Department of Health and Human Services would withhold 15 percent of the federal funds allocated for a child welfare services program from state and local governments that do not comply.

The amendment is a federal version of “license to discriminate” laws in adoption and foster care that have been enacted in 10 US states. The debates around these bills indicate that they were enacted primarily as a response to marriage equality in the United States. In 2018 alone, Kansas, Oklahoma, and South Carolina have all enacted “license to discriminate” laws in adoption and foster care. Alabama, Michigan, Mississippi, North Dakota, Texas, South Dakota, and Virginia have similar laws in place.

Rep. Robert Aderholt (R-AL) proposed the amendment as part of a US$177.1 billion funding package for the federal Departments of Labor, Health and Human Services, and Education. The committee adopted the amendment on a 29-23 vote largely along party lines, with Rep. Scott Taylor (R-VA) breaking with fellow Republicans to vote against it.

On July 11, 2018, the House Appropriations Committee approved the draft funding bill on a 30-22 vote. It will now proceed to the House for a floor vote.

The “license to discriminate” laws are often referred to as religious exemptions, but the term “exemption” is misleading. The laws do not exempt religious providers from nondiscrimination laws that are already in place. In fact, none of the states that have enacted these “exemptions” have banned discrimination based on sexual orientation and gender identity. In the US, only three states and the District of Columbia prohibit discrimination based on sexual orientation and gender identity in adoption and foster care. Another five states prohibit discrimination based on sexual orientation in adoption and foster care but are silent on discrimination based on gender identity.

Human Rights Watch has documented the harm that so-called religious exemption laws can inflict on parents and children alike. In some cases, parents trying to adopt children were refused service because of their sexual orientation. Dana Dumont, who unsuccessfully tried to adopt from an agency in Michigan in 2016, said: “It was really hard. It hurt… We like to think we’ll be good moms, but it really hurt that they wouldn’t even get to know who we were. It’s this little piece – because we’re two women, they said no.”

Refusing to place children with LGBT people restricts the pool of prospective parents for vulnerable children. Currently, 23,000 children age out of foster care each year when they turn 18 without having been matched with an adoptive family. Those children face high levels of homelessness and unemployment.

In the US, LGBT people are six times more likely than heterosexual couples to provide foster care and four times more likely to adopt. In some instances, LGBT people said that refusals made them less likely to continue with the adoption and foster care process, either because they did not have alternative providers in their area or because they feared similar treatment at other agencies.

“It’s really about the kids who are trapped at these agencies, or trapped at these agencies and likely to age out of the system,” said Erin Busk-Sutton, a woman who was rejected by an agency in Michigan because of her sexual orientation. “They did ask what age group we were looking for and we said we were flexible, which should be a hallelujah moment for any agency.”

The amendment is virtually identical to the Child Welfare Provider Inclusion Act, a bill introduced in Congress in 2017. Lawmakers opposed to the idea of a “license to discriminate” introduced the Every Child Deserves a Family Act, also in 2017, which would prohibit adoption and foster care agencies that receive federal support from discriminating based on sexual orientation, gender identity, or marital status. Neither of these bills have been enacted into law.

Lawmakers in the House of Representatives should amend the appropriations bill to remove the discriminatory amendment when it reaches the floor. The Senate’s funding package passed through committee without a similar provision, and the Senate should reject any efforts to add a similar provision to their bill. Lawmakers from both chambers should reject a license to discriminate in any final appropriations package.

“By slipping this amendment into a massive spending bill, Congress is putting bigotry ahead of the needs of vulnerable children who need loving families,” Thoreson said. “At the first opportunity, Congress should strip this provision out and affirm that the best interest of the child is always paramount.”

Posted: January 1, 1970, 12:00 am

Child welfare agencies could be allowed to discriminate under a recent amendment to legislation pending before Congress that would threaten the rights of children in care.

The amendment would ban the federal government from withholding support from child welfare providers that refuse to provide services because of their religious or moral beliefs. The amendment would also apply to state and local governments that receive federal funding for child welfare services. It would make it much harder to stop agencies that receive federal funding from refusing to place children for adoption or foster care with lesbian, gay, bisexual, or transgender (LGBT) people, single or divorced people, people of a different faith, or anyone else they deem unacceptable based on the agency’s beliefs.

Posted: January 1, 1970, 12:00 am
Dr. Brittany Brooks meets with a patient at Open Arms Healthcare Center, a clinic in Jackson, MS, that focuses on alleviating healthcare disparities for underserved populations, with a particular focus on LGBT people. 
© 2018 Nina Robinson / The Verbatim Agency / Getty Images

The Trump administration is considering regulatory changes that would worsen barriers many lesbian, gay, bisexual, and transgender (LGBT) people in the United States face in obtaining health care, Human Rights Watch said in a report released today. The US Department of Health and Human Services (HHS) should reconsider those changes, which would leave LGBT people more vulnerable to discrimination.

The 34-page report, “‘You Don’t Want Second Best’: Anti-LGBT Discrimination in US Health Care,” documents some of the obstacles that LGBT people face when seeking mental and physical healthcare services. Many LGBT people are unable to find services in their area, encounter discrimination or refusals of service in healthcare settings, or delay or forego care because of concerns of mistreatment.

“Discrimination puts LGBT people at heightened risk for a range of health issues, from depression and addiction to cancer and chronic conditions,” said Ryan Thoreson, an LGBT rights researcher at Human Rights Watch. “Instead of treating those disparities as a public health issue, HHS is developing politicized rules that will make them much worse.”

Two upcoming regulatory changes are likely to worsen these barriers, Human Rights Watch said. In January 2018, HHS issued a proposed rule that would broaden existing religious exemptions in healthcare law, giving sweeping discretion to insurers and providers to deny service to patients because of their moral or religious beliefs. In April 2018, the Trump administration announced plans to roll back a regulation that clarifies that federal law prohibits healthcare discrimination based on gender identity. If finalized, these changes would further undermine the limited antidiscrimination protections that currently exist for LGBT people.

Human Rights Watch interviewed 81 people for the report, including providers and individuals who said they had experienced discrimination in healthcare settings.

Existing protections for LGBT people in health care are uneven. In 2016, the Obama administration issued a regulation clarifying that Section 1557 of the Affordable Care Act, which prohibits sex discrimination in health care, also prohibits discrimination against transgender people. Eight states and religious healthcare providers challenged the regulation in court, and the Trump administration has signaled it plans to roll it back.

Protections at the state level are lacking. As of July 2018, 37 states do not expressly ban health insurance discrimination based on sexual orientation or gender identity. New Jersey prohibits discrimination based on gender identity but not sexual orientation. In 10 US states, transition-related health care is expressly excluded from Medicaid coverage, limiting options for low-income transgender people.

LGBT people interviewed for the report described difficulty finding hormone replacement therapy, HIV prevention and treatment options, fertility and reproductive services, and even just welcoming primary care services. Judith N., a transgender woman in East Tennessee, said, “I spent years looking for access to therapy and hormones and I just couldn’t find it.”

Others described discriminatory treatment by providers. Trevor L., a gay man in Memphis, recalled an incident when he took an HIV test at his annual checkup in 2016: “and they sat down and started preaching to me – not biblical things, but saying, you know this is not appropriate, I can help you with counseling, and I was like, oh, thank you, I’ve been out for 20 years and I think I’m okay. It’s almost like they feel they have the right to tell you that it’s wrong.”

In addition to discrimination, many LGBT people are refused services outright because of their sexual orientation or gender identity. In a nationally representative survey conducted by the Center for American Progress in 2017, 8 percent of lesbian, gay, and bisexual respondents and 29 percent of transgender respondents reported that a healthcare provider had refused to see them because of their sexual orientation or gender identity in the past year. Interviewees described being denied counseling and therapy, refused fertility treatments, denied a checkup or other primary care services, and in one instance, told that a pediatrician’s religious beliefs  precluded her from evaluating a same-sex couple’s 6-day-old child.

Both providers and LGBT people noted that concerns about discrimination and mistreatment led LGBT people to delay or forego care. A 2015 survey of almost 28,000 transgender people found that, in the year preceding the survey, 23 percent did not seek care they needed because of concern about mistreatment based on gender identity.

Many interviewees expressed concern that laws permitting providers to refuse service on moral or religious grounds would make care even harder to obtain. Persephone Webb, a transgender activist in Knoxville, Tennessee, said that “[i]t tells people who are prone to being bigoted to be a little braver, and a little braver. And we see through this – we know this is an attack on LGBT people.”

Instead of finalizing the proposed changes, HHS should preserve antidiscrimination protections and withdraw sweeping exemptions that put patients at risk, Human Rights Watch said. Lawmakers at the state and federal level should prohibit discrimination in health care on the basis of sexual orientation and gender identity, and should repeal exemptions that allow providers to refuse to serve patients because of their sexual orientation or gender identity.

“When LGBT people seek medical care, the oath to do no harm too often gives way to judgment and discrimination,” Thoreson said. “Lawmakers need to make clear that patients come first, regardless of their sexual orientation or gender identity.”

Posted: January 1, 1970, 12:00 am

 

Summary

If you want the best surgeon, you want the best surgeon, you don’t want the second best.
—Krista Contreras, reflecting on her six-day-old child being turned away by a pediatrician, Ferndale, MI, January 18, 2018

A substantial body of research indicates that lesbian, gay, bisexual, and transgender (LGBT) populations across the United States encounter significant barriers to health care. Many LGBT people have difficulty finding providers who are knowledgeable about their needs, encounter discrimination from insurers or providers, or delay or forego care because of concerns about how they will be treated. In the absence of federal legislation prohibiting healthcare discrimination based on sexual orientation and gender identity, LGBT people are often left with little recourse when discrimination occurs.

In May 2017, the US Department of Health and Human Services (HHS) signaled it would roll back regulations that prohibit discrimination against transgender people in federally funded healthcare programs. In April 2018, HHS submitted a draft of a proposed rule to this effect to the White House. At the same time, HHS has recently proposed regulations that would give providers wide latitude to discriminate or refuse to provide certain key services to LGBT people, women, and others by asserting a moral or religious objection. HHS has also created a new division within HHS’s Office of Civil Rights to address claims brought by healthcare workers who raise objections to providing medical care to certain patients based on the provider’s religious beliefs. Together, these developments threaten to exacerbate the barriers to care that LGBT people already encounter, and give insurers and providers who would deny services to LGBT people, women, and others a license to discriminate against them.

This report documents some of the barriers that LGBT people face in obtaining health care, and the toll that sweeping moral or religious exemptions can take on the health and well-being of those who are turned away by providers. It illustrates the scarcity of competent healthcare services for LGBT people in many states, the discrimination that LGBT people too often experience from providers, and the ways that negative experiences can deter LGBT people from seeking and obtaining the care they need.

The rollback of federal healthcare antidiscrimination protections and the expansion of religious exemptions for healthcare providers are each likely to impede LGBT people from obtaining healthcare services. Taken together, these moves will be devastating for many LGBT people, women, and others. Lawmakers at the federal, state, and local levels should enact laws and regulations that expressly prohibit discrimination based on sexual orientation and gender identity in health care, and should repeal or revise sweeping religious exemption laws that allow insurers and providers to deny healthcare services to LGBT people and women seeking reproductive care.

 

Methodology

Human Rights Watch conducted the research for this report between August 2017 and July 2018. To identify interviewees, a researcher conducted outreach through national and state LGBT groups, legal advocates, and service providers who circulated information about the project to their networks. The outreach for this report primarily focused on Mississippi and Tennessee, two of the states where statewide antidiscrimination protections do not prohibit discrimination based on sexual orientation and gender identity and where lawmakers have recently enacted exemptions permitting some providers to refuse service to LGBT people because of their religious or moral beliefs. A researcher conducted a total of 81 interviews specifically related to healthcare discrimination, including 33 with individuals who said they had been discriminated against in medical settings and 48 with advocates and providers working with affected individuals.

Most interviews were conducted in person from November 2017 to February 2018, with additional interviews conducted by telephone. No compensation was paid to interviewees. The researcher obtained verbal informed consent from interviewees, and notified interviewees why Human Rights Watch was conducting the research and how it would use their accounts, that they did not need to answer any questions, and that they could stop the interview at any time. Interviewees were given the option of using pseudonyms in published materials for the project; where pseudonyms are used in this report, that is reflected in the footnote citation.

 

I. Background

Under the Obama administration, US federal agencies issued a series of rules and regulations prohibiting discrimination based on sexual orientation and gender identity in federally funded programs. The Departments of Education, Justice, Housing and Urban Development, and Health and Human Services, among others, issued guidance or regulations clarifying that discrimination based on gender identity is impermissible as a form of sex discrimination under federal law.[1]

Since 2017, the Trump administration has undercut or outright reversed many of these steps, rescinding guidance protecting transgender youth in schools,[2] delaying implementation of regulations protecting transgender people experiencing homelessness,[3] and opposing inclusive interpretations of federal employment discrimination laws in court.[4] Most recently, the administration has advanced two regulatory changes, discussed at length below, that would weaken antidiscrimination protections around federally funded healthcare activities and programs.

As this report describes, many LGBT people already face difficulties obtaining accessible, inclusive health care. The Trump administration’s proposed rollback of antidiscrimination protections and expansion of religious exemptions are likely to have devastating consequences, exacerbating health disparities for a population that already experiences high rates of healthcare discrimination.

Discrimination by Healthcare Providers

A substantial body of social science and medical research has found that LGBT people are at heightened risk for physical and mental health problems.[5] In 2016, a nationally representative survey to collect data on sexual orientation found LGB people were at heightened risk of psychological distress, drinking, and smoking, and lesbian and bisexual women were at heightened risk of having multiple chronic conditions.[6] While data is less readily available for transgender individuals, state-level data has found that transgender people in the United States are more likely to be overweight, be depressed, report cognitive difficulties, and forego treatment for health problems than cisgender people.[7]

When LGBT people require care, they often face higher barriers to accessing it. LGBT individuals are twice as likely to be uninsured as non-LGBT individuals and many have difficulty finding providers who will treat them without passing judgment on their sexual orientation or gender identity or offer the services they need, particularly in rural areas. Some have difficulty finding providers who will treat them at all.[8]

The health issues that LGBT people experience are often exacerbated by the discrimination they face in society. Researchers have identified a range of harms related to “minority stress,” or the added stressors that individuals face because they belong to a stigmatized group. As one summary of this research notes: “Studies have concluded that minority stress processes are related to an array of mental health problems, including depressive symptoms, substance use, and suicide ideation and attempts.”[9] Studies have found links between minority stress and physical health problems as well.[10]

In one nationally representative survey from 2017, 68.5 percent of LGBT people who experienced discrimination in the past year said it negatively affected their psychological well-being, while 43.7 percent said it negatively affected their physical well-being.[11] Notably, levels of minority stress are partially influenced by the legal and social conditions under which individuals live, and “[r]esearch has shown that in US regions where LGB people have better social and legal conditions, they also have better health and lesser health disparities compared with heterosexuals.”[12] A recent study comparing mental distress in three states with religious refusal laws and six control states, for example, found that the passage of religious refusal laws was associated with a 46 percent increase in the proportion of LGBT residents reporting mental distress.[13]

LGBT people also have unique needs related to their sexual orientation and gender identity. Same-sex couples who decide to have children, for example, may seek out fertility specialists or utilize assisted reproductive technologies as part of the process. While not limited to LGBT people, gay and bisexual men and transgender women may be more in need of HIV-related health care, including treatment for those who are living with HIV and access to preventive care such as pre-exposure prophylaxis (PrEP), a daily pill that significantly lowers the risk of HIV infection. Transgender people who medically transition may seek access to puberty blockers, hormone replacement therapy (HRT), or gender-affirming surgeries as part of their transition.

Yet LGBT people—and particularly transgender people—continue to face high rates of discrimination in healthcare settings. In a nationally representative survey conducted by the Center for American Progress in 2017, 8 percent of lesbian, gay, and bisexual respondents and 29 percent of transgender respondents reported that a healthcare provider had refused to see them because of their sexual orientation or gender identity in the past year.[14] Over the same period, 9 percent of lesbian, gay, and bisexual respondents and 21 percent of transgender respondents said a provider had used harsh or abusive language when they sought medical care.[15] A survey of almost 28,000 transgender people conducted by the National Center for Transgender Equality in 2015 found that 33 percent of respondents had experienced a negative interaction with a healthcare provider because of their gender identity in the year preceding the survey.[16]

Discrimination deters many LGBT people from seeking care. In the Center for American Progress survey, 8 percent of LGBT respondents had delayed or foregone medical care because of concerns of discrimination in healthcare settings—and those who had previously experienced discrimination were particularly likely to avoid seeking care.[17] In the National Center for Transgender Equality survey, 23 percent of respondents did not seek care they needed because of concern about mistreatment based on gender identity.[18]

This data and interviews conducted by Human Rights Watch suggest that transgender and gender non-conforming people are at a particularly high risk of discrimination in health care. LGB interviewees most often encountered discrimination when they disclosed their sexual orientation or mentioned a same-sex partner, and occasionally described how they would not disclose these facts to providers to avoid discrimination. Nondisclosure was more difficult for many transgender interviewees, particularly when their medical records did not align with their gender identity, providers perceived them to be transgender, or they sought or were undertaking medical transition. While there are significant barriers to care for LGB people, especially in fertility and sexual health services, discrimination against transgender and gender non-conforming people is particularly acute. 

Although this data suggests that discrimination can be detrimental to LGBT people’s health and well-being, protections against such discrimination remain uneven at both the federal and state levels.

Limited Antidiscrimination Protections

When LGBT people face discrimination in health care, the options for recourse are usually limited. As of this writing in June 2018, 37 states do not expressly prohibit health insurance discrimination based on sexual orientation and gender identity, and New Jersey prohibits discrimination based on gender identity alone.[19] Only 19 states and the District of Columbia prohibit health insurers from excluding medical services for transgender people in insurance plans.[20] States offer varying degrees of protection in their Medicaid policies as well. In 18 states and the District of Columbia, the state policy expressly covers transition-related care for transgender people, while 22 states have no policy on transgender health coverage and 10 states expressly exclude that coverage.[21]

Recognizing the obstacles that LGBT people face, the Obama administration introduced rules that sought to curb discrimination in health care. Section 1557 of the Affordable Care Act, enacted in 2010, prohibits discrimination in health care based on race, color, national origin, sex, age, or disability.[22] In 2016, the Department of Health and Human Services issued regulations implementing section 1557, which established that the prohibition of discrimination based on “sex” should be understood to include discrimination based on gender identity and pregnancy status.[23] The rule ensures that transgender people cannot be denied care—including transition-related care—because of their gender identity. It clarifies that transgender people should be treated in accordance with their gender identity, and that insurance providers cannot presumptively deny coverage for transition-related care or refuse treatments to transgender people in a discriminatory manner. Shortly after the final rule was implemented, eight states and religious healthcare providers challenged it in court, and a federal judge in Texas enjoined the rule from taking effect.[24] As of June 2018, that stay remains in place.

Recent Setbacks for LGBT People’s Health and Rights

Instead of taking action to remedy the discrimination and healthcare disparities that LGBT people experience, the Trump administration has advanced two regulatory changes that are likely to exacerbate these problems.

First, in May 2017, the Department of Health and Human Services began the process of rolling back the rule clarifying section 1557. Rather than defending the rule in court, the Trump administration announced it planned to eliminate language clarifying that sex discrimination includes discrimination based on gender identity.[25] In April 2018, it notified the court that it had submitted a proposed rule to that effect to the White House for approval.[26] As of June 2018, six appellate courts had concluded in other contexts that discrimination based on gender identity is a form of discrimination based on sex,[27] and two appellate courts had reached a similar conclusion with regard to discrimination based on sexual orientation.[28] Nonetheless, rolling back the rule would have practical consequences, leaving transgender people less certain of their rights, providing little guidance to insurers or providers about their responsibilities under section 1557, and signaling that federal agencies will not advance trans-inclusive interpretations of section 1557 in their rulemaking and enforcement capacities. 

Second, in early 2018, the Department of Health and Human Services issued a proposed rule that would give sweeping discretion to insurers and providers to decline to serve patients based on their moral or religious beliefs.[29] The regulation would broaden existing religious exemptions by codifying definitions so vague and open-ended that they could easily be invoked as a pretext to justify discrimination against LGBT people, women, and others.[30] While the bulk of the proposed rule focuses on providers, it includes language that purports to allow insurers to opt out of covering services they are otherwise required to cover under state or federal law. These redefinitions risk greatly exacerbating the healthcare discrimination and barriers that LGBT people, women, and others already experience. Among the definitions that give cause for concern are the following:

· The proposed rule broadens the definition of the term “health care entity” with an illustrative, non-exhaustive list of providers, institutions, and insurers, leaving little clarity about who can claim exemptions under the proposed rule and providing little guidance for providers and patients alike.[31]

· The proposed rule broadens what it means to “assist in the performance of” a healthcare service, permitting anyone with an “articulable connection” to the healthcare service they consider objectionable—instead of a “direct connection”—to decline to participate. The expanded definition would allow people with only a tangential connection to the provision of healthcare services, including administrative or technical personnel, to refuse to perform a task because they can identify some connection, no matter how attenuated, to a service they consider objectionable.[32] For example, a hospital room scheduler might well be able to refuse to book a room, or a technician refuse to clean surgical instruments, for procedures they consider objectionable.

· The proposed rule allows exemptions from a broad range of referral requirements, defining “referral” or “refer for” to include the provision of basic information about a healthcare service, activity, or procedure.[33]  

The decisions to roll back the rule protecting transgender people and to expand protections for those who refuse to provide healthcare services based on religious beliefs strengthen the ability of insurers and providers to refuse care to LGBT people, and particularly transgender people. They also have the practical effect of pulling the government’s focus away from a serious problem while greatly elevating the importance of a relatively minor one. Between the fall of 2016 and the fall of 2017, the Office of Civil Rights (OCR) received more than 30,000 complaints alleging civil rights or privacy violations in healthcare settings. In a roughly similar period, OCR received just 34 complaints alleging violations of existing federal laws that permit religious refusals.[34]

In addition to these federal developments, three US states have enacted laws or regulations that give wider latitude to discriminate in the provision of healthcare services.

· Illinois’s Health Care Right of Conscience Act, amended in 2016, provides that no person, institution, or official can discriminate against any person based on a “conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care services contrary to his or her conscience.”[35] The law requires facilities to develop written protocols that outline how objections will be addressed, and to have a non-objecting provider at the facility provide the service, refer the patient, or notify the patient about other providers.[36] While the latter provisions attempt to ameliorate the adverse effects that a refusal might have on an individual’s health or rights, the referral requirement was temporarily enjoined by a federal court in 2017 and opponents have filed a complaint with HHS challenging the referral and information provisions.[37]  

· A Tennessee law enacted in 2016 states that “[n]o counselor or therapist providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the counselor or therapist.”[38] The law states that providers who refuse services should coordinate a referral to another provider who will see the client.[39]

· A Mississippi law enacted in 2016 explicitly allows certain kinds of discrimination by those who believe that “marriage is or should be recognized as the union of one man and one woman; sexual relations are properly reserved to such a marriage; and male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”[40] In health care, this means that the state may not take action against a provider who declines to provide “treatments, counseling, or surgeries related to sex reassignment or gender identity transitioning or declines to participate in the provision of psychological, counseling, or fertility services based upon a sincerely held religious belief or moral conviction.”[41]

As the research in this report illustrates, many LGBT people in the United States face significant obstacles when seeking healthcare services. Retreating from antidiscrimination protections while expanding exemptions that permit insurers and providers to deny care based on their moral or religious convictions is a dangerous combination.

 

II. Anti-LGBT Discrimination in Health Care

The withdrawal of antidiscrimination protections and expansion of religious exemptions is occurring in a climate in which LGBT people already face significant barriers to accessible and inclusive health care. LGBT people in states that enacted exemptions described four major obstacles, independent of the proposed federal changes, to obtaining the care they need: lack of accessible services, discrimination by insurers and providers, refusals by providers, and reluctance to seek care. As discussed in this section, each of these obstacles is exacerbated where legal protections against discrimination are absent or unclear and where the expansion of religious exemptions allows providers to refuse care.

Lack of Accessible Services

Even before approaching healthcare providers, LGBT people can encounter difficulty finding the specific services they need. If they experience discrimination, they may not have alternative providers available. Data collected by the Center for American Progress indicate that 18 percent of LGBT people believe that if they were refused care at a hospital, it would be “very difficult” or “not possible” to find an alternative provider.[42] Outside of major metropolitan areas, that number rose to 41 percent.[43] Transgender people were particularly likely to say that alternatives would be unavailable or inaccessible if they were turned away from a hospital, community health center, or pharmacy in their area.[44]

In part, this is because there may be few providers who are known to provide care to LGBT individuals without passing judgment on their sexual orientation or gender identity or are equipped to provide certain types of care, especially in more rural areas. The creation of LGBT competency modules in physician training programs is a relatively recent development; a survey of US medical schools conducted in 2012 found that only 16 percent of respondent institutions had comprehensive LGBT-competency training, and 52 percent had no LGBT-competency training at all.[45] Where it is offered, training on LGBT issues may be elective, or may only constitute a small portion of a larger course on serving diverse or multicultural populations.[46]

Even where there are multiple providers in an area, material and logistical barriers may prevent LGBT people from being able to access them. When providers are not trained on LGBT issues or services are scarce in an area, LGBT people may have few options when a provider discriminates against them or turns them away.

Scarcity of Providers

Most interviewees told Human Rights Watch that they had little or no access to LGBT-friendly healthcare providers in their area. As the head of one community center in rural Michigan said, “I do not know of any trans-affirming healthcare providers in the area. And I’ve talked to many trans people in the area.”[47] One pediatrician in Alabama remarked that religious refusals are “dangerous in a predominantly rural state, [where] health disparities are massive to begin with. Huge, huge, huge swathes of our state not only have no pediatricians, but have as few as two or three physicians per county.”[48] Interviewees described LGBT individuals driving two hours from Tennessee to attend a weekend support group for gender-expansive youth in Birmingham,[49] traveling two hours from Arkansas or Mississippi to attend therapy or meet with a trans-affirming doctor in Memphis,[50] driving across Michigan to find a friendly nurse practitioner or medical practice,[51] or driving from East Tennessee to North Carolina for regular hormone injections.[52]

The lack of providers was especially acute in rural areas, but certain services were difficult to find in metropolitan areas as well. As one mother of a transgender child noted:

In Knoxville, we have a lot of hospitals, a lot of doctor’s offices, but even with all of that, finding hormone therapy is very difficult. So difficult. Gynecologists don’t do hormones, GPs don’t do hormones, you have to see an endocrinologist. And that can be cost prohibitive, or maybe you don’t find one you like…. It’s hard to find medical care for trans people even in a city around here—and that’s just for hormones. Finding a GP where you can go in the office that you’re comfortable in, where the doctor is good, the office is good—that’s hard for anyone, even if you’re not trans. But having them treat you like a normal human being when you’re trans is even more difficult. If you’re in a rural area, you’re up a creek.[53]

While some of the scarce services were related to sexual orientation or gender identity, others were general medical services that providers denied to LGBT people. Interviewees described how one transgender man in East Tennessee had to travel three hours to obtain a hysterectomy,[54] and others noted that breast surgeries that were available to cisgender individuals were not similarly available to transgender individuals.[55] One sexual and reproductive health services provider observed: “I think there’s four hormone therapy providers [in our area]… Our provider who does HRT services is like, it’s no different from menopause services.”[56]

Many interviewees told Human Rights Watch that some services were available only from a small number of providers. A survey by the National Center for Transgender Equality found that 29 percent of transgender people who are able to access transition-related care have to travel more than 25 miles to obtain it.[57]

Several providers and LGBT individuals noted that they knew of very few providers in their areas who would prescribe PrEP, a medication that significantly lowers the risk of HIV infection by preventing HIV from taking hold in the body.[58] As one psychologist in Knoxville, Tennessee, noted, “there are only two providers who’ll prescribe it—in a community this large. And the doctor we like, we overload him—we’re like, you have one option, and if you don’t have insurance, you’re pooched, because he’s expensive.”[59] A service provider in Memphis, Tennessee, similarly said that, in a city of a million people, the hospital they worked with was aware of three doctors who would handle PrEP referrals.[60]

Other interviewees identified a limited number of fertility and reproductive health providers who worked with same-sex couples. A lesbian woman in Mississippi recalled that, when she and her wife sought a fertility doctor in 2012, they were unable to find options in their area and contacted a clinic in Alabama. When that clinic informed the couple that they only treated heterosexual, married couples, they did not find an LGBT-friendly provider for a year.[61]  

As discussed below, many LGBT organizations and community groups developed lists of providers who were known to be open to LGBT clients. As one trans activist noted, “Our list of mental health care providers that we pass around is really small. It’s—the ones who will actually answer the phone and schedule an appointment are probably three or four. And these are the ones who have been somewhat vetted as being LGBT friendly. And a lot of those, the T is silent, most of the time.”[62]

In some instances, services existed but were not advertised to the community. One doctor in a rural state noted that her hospital had extensive services for transgender youth, but they were not allowed to market or advertise those services because administrators were concerned about repercussions from the state legislature.[63] The mother of a transgender child who had struggled to find a pediatric endocrinologist said, “the ones in this area, they’ve told us they’re not certain about displaying something saying they’re LGBT friendly, out of fear of how people would react.”[64]

When a limited number of providers were known to the community to be competent and welcoming, they could be overwhelmed with demand.[65] As Judith N., a transgender woman in East Tennessee, described it, “I spent years looking for access to therapy and hormones and I just couldn’t find it. We end up recommending the same places over and over, and that has to mean people aren’t getting in.”[66]

Barriers to Access

For many LGBT people, unemployment and poverty combine with other barriers to care to make particular types of care virtually unattainable. A study examining data collected from 2010 to 2014 found that households headed by same-sex couples are more likely than those headed by demographically similar heterosexual couples to live in poverty.[67] Data from the 2015 U.S. Transgender Survey indicated that 15 percent of transgender respondents were unemployed and 29 percent were living in poverty.[68] Without employment, individuals may have a more difficult time maintaining insurance and affording health care. In early 2017, an estimated 25 percent of transgender individuals were uninsured.[69] In the 2015 U.S. Transgender Survey, a third of the transgender respondents indicated that they had foregone medical care they needed in the past year because of concerns about cost.[70]

Interviewees described how cost and distance made certain services unattainable. Sandra R., a transgender woman in Flint, Michigan, described the difficulty of finding providers who would assist with a surgical transition. The nearest in-state surgeon she could find who would do the procedure was located in Ann Arbor, an hour away, which was prohibitively difficult because she did not have her own transportation. She was told that to obtain surgery from that provider, she would have to undergo electrolysis. The only transgender-friendly electrolysis providers she could find were in Lansing and Ann Arbor, and she could not determine if they would take her insurance or if it was a covered procedure. Although she was able to find a surgeon in Pennsylvania who did not require electrolysis, her insurance would not cover out-of-state procedures, and she had thus far been unable to navigate her insurance to determine how she could proceed.[71]    

Patrick Grzanka, a professor of psychology at the University of Tennessee who is documenting the effects of Tennessee’s law permitting counselors to discriminate based on their religious beliefs, said that religious exemption laws exacerbate scarcity and barriers to access: “And therapists, counselors, and psychotherapists, it’s not like every town has one, like a fire station. People might be 40 miles, 50 miles, from the nearest therapist who takes their health insurance…. There are so many reasons people don’t seek therapy—cost, people don’t know how to get it, the stigma—and to put up another obstacle is that much worse.”[72] Elliott Devore, a graduate student working on the project, echoed this assessment: “The qualitative interviews we’re wrapping up are pretty heartwrenching. People will say in my small town there’s one person or two, and I don’t have an hour or hour and a half to drive to Nashville to find an affirming therapist.”[73] In situations like these, a provider’s unwillingness to see an LGBT person can mean the difference between obtaining needed health care and not obtaining it at all.

Discrimination and Mistreatment

When LGBT people did access healthcare services, many encountered discriminatory language or treatment related to their sexual orientation or gender identity. As noted above, a nationally representative survey released in January 2017 found that 9 percent of lesbian, gay, and bisexual respondents and 21 percent of transgender respondents had experienced harsh or abusive language from a medical provider in the previous year.[74]

Multiple interviewees noted that they not only encountered discrimination from their medical provider, but from administrative staff. Jeynce Poindexter, a victim’s advocate at Equality Michigan, observed that: “The initial interaction in the emergency room, where you have to give your ID, info, insurance, that’s mainly where the complaints come from—it’s not the doctors so much. It’s the initial intake. There’s lots of misgendering, harmful terminology, intentional disrespect.”[75]

Beyond the intake, some interviewees faced humiliation or discrimination from providers themselves. Renae T., a transgender woman in Memphis, Tennessee, recalled an incident where a nurse was treating her for cardiomyopathy, left the room, and audibly told another nurse to come look at her breasts.[76] Judith N., a transgender woman in East Tennessee, described a pre-employment medical examination where a doctor ended the appointment without giving her the exam as soon as he saw she had shaved her legs.[77] Karen W., a transgender woman in Biloxi, Mississippi, recounted that she had been admitted and then ignored when seeking care at the emergency room at a local hospital; about a year later, a transgender male friend had a similar experience at the same hospital.[78]

Although many interviewees described negative experiences in hospitals, discrimination occurs in counseling and therapy as well, as described elsewhere in this report. KT Hiestand, a therapist in Memphis, observed:

There have been a few folks who found a therapist who started seeing them and the therapist tried to cure them, make them not trans. I’ve had two lesbian clients I can think of who were working with another therapist, they were having relationship difficulties, the therapist’s solution was oh, you just need to date men. Quite frankly, I’ve been shocked. I know there are therapists who are not open and accepting. I get that. I assumed that would be the exception, but it often feels like it’s more the rule.[79]

These discriminatory incidents can deter LGBT people from returning for medical care. As Carla B., the mother of a transgender teenager, said: “I said these are his name and his pronouns and he was sitting there, and the doctor uses his birth name and pronouns…. After the doctor left, [my son] cried for a solid ten minutes, and said I don’t want to come back here ever again.”[80] Socorro Sevilla, a clinical social worker in rural Michigan, observed: “I’ve gotten quite a few people who have gone through several providers—they’ve had to drive to Ann Arbor, which is an hour away, and some have gone to providers who they felt said things that were inappropriate or who weren’t supportive or just seemed blatantly anti-LGBTQ to them.”[81]

In many instances, this discriminatory treatment was overtly moralistic. Trevor L., a gay man in Memphis, recalled an incident in 2016: “I had one experience down here where I had a doctor, and I said I want to get an HIV test done, get my annuals done, and they sat down and started preaching to me—not biblical things, but saying, you know this is not appropriate, I can help you with counseling, and I was like, oh, thank you, I’ve been out for 20 years and I think I’m okay. It’s almost like they feel they have the right to tell you that it’s wrong.”[82]

Kayla Gore at OutMemphis, an LGBT center in Memphis, noted the organization had fielded similar complaints: “As far as PrEP goes, we’ve had doctors pray for trans clients, pray for their redemption, pray that their lifestyle doesn’t lead them down the road to HIV, and they deny them access to PrEP.”[83] Holly Calvasina, who works at a center for reproductive health in Memphis, said that “in terms of accessing HRT, PrEP and PEP [post-exposure prophylaxis], we absolutely see patients who come to us who have gone to other organizations in town and had situations where their navigator will say, ‘this is Mary, she’s here for PrEP,’ and they’ll say ‘welcome, Duane, please come back.’ Or before they give the prescription, they say, ‘can I pray for you?’ So even though technically the services are available and there’s state funding to pay for them, I’d consider them functionally inaccessible. I’m a white lesbian who lives in the suburbs, and I wouldn’t go there.”[84]

This kind of overt discrimination can be especially damaging to those seeking mental health care. Shane Bierma, who provides psychological services at Positively Living in Knoxville, underscored the tenor of the discrimination that many LGBT people encounter from mental health professionals:

It is not uncommon for many of my clients to have been sent to conversion therapy at some point in their development. It is not uncommon for my clients to have had some other type of religious intervention in their sexuality. I’ve had numerous clients who are HIV positive tell me of having at least one if not several medical providers tell them that they have HIV because God hates them because they’re gay. I have had ambiguous refusals where it was likely that I didn’t have good information because I saw folks when they were in crisis, but lots of judgment or refusal of services in rural communities, or the utter and complete fear to even try. Probably some of the best things that happen are people end up in psychiatric crisis in rural communities and they end up in Knoxville and are able to get actual services here, and realize there’s a world outside their rural community where they can get help.[85]

In a context where discrimination is common, the federal government’s decision to roll back language that clearly prohibits discrimination and expand religious exemptions sends a dangerous signal, one that opens the door to mistreatment. As Gore observed, “We’re in the Bible Belt, so a lot of our discrimination is deeply rooted in people’s religious beliefs. They don’t always say it, but that’s the actual case. It’s religiously based.”[86] As religious exemptions expand to encompass a wider range of staff members and forms of objections, these service refusals are likely to become more commonplace and overt.

Refusals of Service

As Human Rights Watch has previously documented, LGBT people face service refusals across the healthcare field.[87] LGBT people have been denied fertility treatments,[88] turned away from counseling sessions,[89] denied a checkup because they are gay,[90] refused basic health care because they are transgender,[91] and in one instance, told that a pediatrician’s religious beliefs precluded her from evaluating a same-sex couple’s six-day-old child.[92]

In recent interviews, mental health professionals in Tennessee said they continue to see new clients who have been turned away by other providers. Jessica Shea, a clinical social worker in Memphis, described how one transgender child was turned away from a religiously affiliated psychiatric practice:

They accepted the person at first, but when they found out it was a trans client, the doctor said we don’t see trans clients here. They got in the door, but then got turned away. It often takes months to get an appointment here, and the family felt they had invested a lot of time to get in, and was then turned away. It was the doctor there…. once he found out the child was a trans child he said they would not be able to accommodate them for the psych evaluation. The family was told they don’t provide services to trans clients.[93]

KT Hiestand, a psychologist in Memphis, underscored that these are not isolated incidents:

I mean, you don’t know how many clients I get who call seeking information and when I call them back and say of course I can work with you on these issues, they tell me how many therapists didn’t call them back or just refused. It’s 2018. I kind of figured we’d be beyond this.[94]

Refusals occur in other aspects of health care as well. Larry Frampton of Nashville CARES, an HIV/AIDS organization, said: “One of the biggest areas where we’ve seen a problem with that is primary care physicians providing PrEP. A lot of them have a moral issue with it, and we get calls from all over the state saying my primary care provider won’t provide PrEP, what do I do, and we’ve had to look up who we can point them to in their area. We’ve had a lot of calls about that. Probably over a hundred.”[95]

Holly Calvasina recounted the story of a transgender colleague in Memphis who “had a yeast infection, and 5 to 6 doctor’s offices told her we don’t treat trans patients. But a prescription for Diflucan isn’t gendered! Unless you’re talking about HRT or surgery, health care isn’t different for trans people. It’s a body that needs care.”[96]

Practitioners who have witnessed the effects of healthcare refusals stressed that these are not without consequence. As Hiestand said: “Being simply turned away from counseling when you’re hurting and you need help is absolutely detrimental—it makes it less likely that the person will continue to seek help.”[97] While mental health practitioners may elect to make a referral when they lack expertise or competency in an area, many professional ethics codes dictate that they do so only if the person is stable and they can refer them to someone who is better equipped to help them.[98] Hiestand noted that she saw clients who had been turned away from other counseling practices without receiving referrals.[99]

Activists have observed wider social effects of religious refusal laws. Interviewees expressed concern that people did not understand the scope of the laws and assumed they permitted a much wider range of religious refusals.[100]

The aggressive expansion of sweeping moral and religious exemptions sends a strong signal to insurers and providers who would discriminate against LGBT people, women, and others based on their beliefs. With the proposed rule from HHS and sweeping exemptions in Illinois and Mississippi, federal and state agencies have invited a much wider range of religious refusals. As Susan Berke Fogel of the National Health Law Program noted, “what we have now is an administration who is very intentionally expanding what religious exemptions look like.”[101]

Reluctance to Seek Care

In addition to the discrimination they engender, the mere existence of sweeping exemption laws can deter individuals from seeking and obtaining care they need. This is particularly acute for LGBT people who have suffered discrimination firsthand. A nationally representative survey conducted by the Center for American Progress in January 2017 found that LGBT people who had experienced discrimination in the past year were six times more likely than those who had not experienced discrimination to avoid going to a doctor’s office.[102]

In the absence of clear definitions and guidelines, people may not know who can and cannot turn them away, and what protections they might have. Leticia Flores, a professor of psychology at the University of Tennessee, noted of the recent counseling exemption in the state: “The real problem with that is that the public doesn’t really know the difference between counselors and psychologists and social workers and therapists. It has a chilling effect, because the public and LGBT people didn’t know who would be accepting and who wouldn’t.”[103] Lisa Henderson of the Tennessee Counseling Association echoed that concern: “[A]ll the media attention around the law makes people less likely to reach out when they need help because they can’t trust counselors will provide good care to them. So people who are most vulnerable are not accessing care when they need to, and that’s a dangerous thing.”[104] As KT Hiestand observed in her practice, “I know people have not sought help because of that law.”[105]

Chris Sanders, the Executive Director of the Tennessee Equality Project, gave a concrete example of this effect. “A woman in Maury County contacted me and said she had been thinking about coming out to her therapist but decided not to, and she was in therapy about marital issues—so she had questions about the bill, and she hasn’t come out to her therapist as a result. That’s not anything the therapist did, she wasn’t turned away, but it was the fear of being turned away.”[106]

Other LGBT individuals described how they had foregone a wide range of care because of concerns about how they would be treated. Clara B., the mother of a transgender teenager in Knoxville, said: “The dentist is a good example—[my son] hasn’t gone back in two years. They’re very religious people and [my son] said I don’t know how they feel about me and I don’t want to go. We’ve yet to agree on finding another dentist.”[107] Judith N., a transgender woman in East Tennessee, said:

I’ve tried to search for LGBT affirming doctors, but you can’t do that around here. They’re not listed. It’s all word of mouth. The combination of not having money anymore and the shitty insurance that goes with it, and then worrying about how I’ll be treated—I haven’t had anything I haven’t been able to recover from. If anything comes up, I hope it’s something I can have treated at Planned Parenthood, because they’re ridiculously good. But that’s an hour away. And that’d be more expensive because they’re out of network.[108]

Even well-informed adults could harbor a reluctance to seek out health care. One interviewee noted that her same-sex partner of 10 years was sufficiently apprehensive about how she might be treated that she had never been to the gynecologist, despite being a nurse and knowing she was supposed to go.[109] Studies have found that lesbian and bisexual women, particularly those who are gender non-conforming, are less likely to seek out gynecological care and less likely to be screened for colon, breast, and cervical cancer.[110] With lower screening rates, lesbian and bisexual women face higher rates of breast and cervical cancer than heterosexual women.[111]  

Effects of Discrimination and Refusals

In interviews, LGBT people and medical practitioners voiced concerns about the practical and symbolic effects of discrimination and refusals by healthcare providers.

Some LGBT individuals circumvented medical guidance because of such discrimination. When transgender individuals were unable to obtain hormones or other medical care, for example, they at times bought them through alternative channels and administered them without medical supervision.[112]

Others sought to compartmentalize their care or withhold information from providers they did not trust. Charlie O., a gay man in Mississippi, said: “I’ve basically bifurcated health care. I go to Open Arms to have discussions about blood tests and Truvada, PrEP, and then have my regular doctor for health screenings, cancer screenings. I’ve self segregated…. And it’s hard to figure out where to look here. I’m lucky—I know doctors, so I can work behind the scenes to find who to go to. But a lot of people don’t have contact with doctors til they need one.”[113] Carla B., the mother of a transgender teenager, observed: “You’re going to withhold information, you’re going to lie… You can’t treat someone and treat them properly if you don’t give them the right information. And it does affect people’s health and well-being.”[114] As Shane Bierma observed, this can itself be damaging:

In rural communities, a lot of times LGBT individuals, they’re not disclosing right away that they are part of the community, and then they’ve already gained an attachment to a provider and they disclose that, and then the provider rejects them, it further fuels this attachment rupture they’ve experienced time and time again. It feels like a weapon to me.[115]

Other LGBT people continued to access health care, but had anxiety about facing discrimination. Jami Contreras, whose daughter was refused service by a pediatrician because she had same-sex parents, said: “It wasn’t violent, they didn’t attack us, but your sense of security is gone. Is it going to be violence next time? You just don’t know. And it’s on all levels—health care, signing [our daughter] up for soccer, you make sure the coach and parents are okay. It’s just sad that in 2018 we have to think about those things.”[116] Gail Stratton, a lesbian woman who co-leads a PFLAG chapter in Oxford, Mississippi, said: “I would say the most direct harm I see is that it increases the anxiety of LGBT people. It puts you on shaky ground where you’re not sure that it’s safe—not that you ever knew, but it’s one more signal that you don’t really belong here.”[117]

Still others were unable to obtain care, and struggled with the toll it took on them. Sandra R., a transgender woman in Flint, Michigan, who had been unable to obtain gender-affirming surgery, explained:

Having gender dysphoria, the only way that a lot of it can be corrected for somebody in my situation, to be healthy and to be able to survive, is surgery. The surgery is the main issue as far as gender dysphoria. I’ve been diagnosed with severe depression, suicidal tendencies, severe anxiety. And I haven’t been in the psych ward for two years now. And all they’re treating is my symptoms, and not my gender dysphoria, which is the root of all the issues and would be resolved with surgery…. I have days where I just get tired of fighting. And I do shut down. I don’t want anyone around. It’s a constant battle.[118]

LGBT people also expressed concern about the discriminatory message that sweeping religious refusals send. Persephone Webb, a trans activist in Knoxville, Tennessee, said that “[i]t tells people who are prone to being bigoted to be a little braver, and a little braver. And we see through this—we know this is an attack on LGBT people.”[119] Petra E., a transgender woman in Mississippi, had a similar assessment of HB 1523, the exemption law there. “1523 for me means that my safety is put at even more risk—that right now, I have my safe spaces because people know they’re not supposed to discriminate. With 1523 going into effect it’s going to empower people to not do their job, and to discriminate.”[120] Sarah H., the mother of a transgender girl in Tennessee, said “We know it’s difficult to find a doctor who’s going to be able to help us with our needs and be friendly and professional towards us. These laws, they’re really more symbolic than anything else. It’s really more of a, we don’t like queer people, and we’re allowed not to like you.”[121]

 

III. Legal Obligations

The US federal government’s proposed withdrawal of regulatory language explicitly prohibiting discrimination in healthcare services, combined with its simultaneous expansion of religious exemptions, jeopardize the health and rights of a population that already faces stark healthcare disparities. The rights to equality and freedom of thought, conscience, and religion may seem at odds with each other in this context, but jurisprudence developed under international human rights law offers guidance on how to reconcile the two without compromising the right to freedom from discrimination.

Harmonizing Equality and Freedom of Thought, Conscience, and Religion

The United States is party to the International Covenant on Civil and Political Rights (ICCPR), which guarantees equal protection under the law as well as the freedom of thought, conscience, and religion.

Article 26 of the ICCPR states: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[122] The UN Human Rights Committee, which provides authoritative guidance on the ICCPR, has determined that this provision also prohibits discrimination on the basis of sexual orientation.[123]

Article 18(1) of the ICCPR recognizes the right to freedom of thought, conscience and religion, which includes both the “freedom to have or to adopt a religion or belief of [a person’s] choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”[124]

The Human Rights Committee has emphasized that article 18 “does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice,” but—recognizing that religious exercise may affect others—does permit limited restrictions on the freedom to manifest one's religion or beliefs.[125] Under article 18(3), states may regulate the manifestation of religion or belief if, and only if, such regulations “are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”[126]

The UN Human Rights Committee has clarified that the freedom of thought, conscience, and religion does not protect religiously motivated discrimination against women, or racial and religious minorities.[127] It has urged states considering restrictions on the manifestation of religion or belief to “proceed from the need to protect all rights guaranteed under the Covenant, including the right to equality and non-discrimination.”[128]

Other Rights at Risk

The religious exemptions discussed in this report jeopardize the enjoyment of several fundamental human rights.

Right to Information

The right to information is set forth in numerous human rights treaties.[129] The ICESCR obliges state parties to provide complete and accurate information necessary for the protection and promotion of rights, including the right to health.[130] The United States has signed, but not ratified, the ICESCR and as such is not bound by its provisions. However, the treaty remains an authoritative source of guidance regarding the steps the US government should take to advance and safeguard the right to information. The Committee on Economic, Social and Cultural Rights, the expert body charged with interpreting the ICESCR, has stated that the right to health includes the right to health-related education and information, including on sexual and reproductive health.[131]

The proposed HHS rule expands existing protections to allow providers to decline to provide information they deem morally or religiously objectionable to their patients, while doing nothing to ensure that those patients have reliable alternative routes to secure that information. Denying medically accurate information to patients leaves them in the dark about their treatment options and prevents them from making an informed choice about which options to pursue.

Right to Health

Exemptions that deny or deter people from seeking healthcare services jeopardize the right to health. The ICESCR recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”[132] It obligates governments to ensure the right to health is enjoyed without discrimination based on race, sex, religion, or “other status,” which the Committee on Economic, Social and Cultural Rights interprets to prohibit discrimination on the basis of sexual orientation and gender identity.[133] As noted above, the United States has signed, not ratified, the ICESCR and as such is not bound by its provisions. However, the Covenant remains a useful and authoritative guide to the steps governments should take to protect and advance the right to health.

When states enact laws allowing healthcare providers to deny service based on their personal objections to an individual’s sexual orientation or gender identity, they undermine the right to health. Individuals may be denied services outright; have difficulty finding services of comparable quality, accessibility, or affordability; or avoid seeking services for fear of being turned away.

The Committee on Economic, Social and Cultural Rights has noted that the right to health is threatened both by direct discrimination and by indirect discrimination, in which laws appear neutral on their face but disproportionately harm a minority group in practice.[134] To promote the right to health, the committee has thus urged states to “adopt measures, which should include legislation, to ensure that individuals and entities in the private sphere do not discriminate on prohibited grounds.”[135]

 

Recommendations

To the US Congress

  • Enact the Equality Act or other legislation which would prohibit discrimination based on sexual orientation and gender identity in all federally funded healthcare programs and activities.
  • Enact the Do No Harm Act, which would prevent the Religious Freedom Restoration Act from being used to carve out exemptions from federal laws and protections regarding nondiscrimination, labor, children’s rights, and health care.

 

To the US Department of Justice

  • Ensure that existing conscience protections are not misused to excuse or justify discrimination on the basis of race, sex, religion, sexual orientation, gender identity, and other classifications.

 

To the US Department of Health and Human Services

  • Preserve and enforce protections against discrimination on the basis of sexual orientation and gender identity.
  • Withdraw the proposed rule expanding religious exemptions that allows insurers and providers to deny available healthcare services because of a person’s sexual orientation or gender identity.

To State Legislatures

  • Prohibit discrimination on the basis of sexual orientation and gender identity in all state-funded healthcare programs and activities.
  • Repeal sweeping religious exemptions that allow insurers and providers to deny available healthcare services because of a person’s sexual orientation or gender identity.

 

Acknowledgments

Ryan Thoreson, a researcher in the LGBT Rights Program, wrote this report based on research that he undertook from August 2017 to July 2018.

The report was reviewed by Graeme Reid, director of the LGBT Rights Program; Alison Leal Parker, managing director of the US Program; Amanda Klasing, senior researcher in the Women’s Rights Division; Megan McLemore, senior researcher in the Health and Human Rights Division; Chris Albin-Lackey, senior legal advisor; and Joseph Saunders, deputy program director. Production assistance was provided by MJ Movahedi, LGBT Rights Program coordinator; Rebecca Rom-Frank, Photo and Publications coordinator; Fitzroy Hepkins, administrative manager; and Jose Martinez, senior coordinator.

Human Rights Watch would like to thank the experts and organizations that provided information for the report, especially the Movement Advancement Project, American Civil Liberties Union (ACLU), Tennessee Equality Project, the Tennessee Transgender Political Coalition, Positively Living, Nashville CARES, Friends for Life, Choices, OutMemphis, Equality Michigan, Affirmations, the OutCenter, the AIDS Services Coalition, and the ACLU of Mississippi.

 

 

[1] White House, “Obama Administration’s Record and the LGBT Community,” June 9, 2016, https://obamawhitehouse.archives.gov/the-press-office/2016/06/09/fact-sh... (accessed June 1, 2018).

[2] Ryan Thoreson, “Trump Administration Withdraws Transgender Student Protections,” Human Rights Watch, February 23, 2017, https://www.hrw.org/news/2017/02/23/trump-administration-withdraws-trans... (accessed June 1, 2018).

[3] Jennifer Hansler, “Carson Defends Delay in LGBT Homeless Protections,” CNN, March 20, 2018, https://www.cnn.com/2018/03/20/politics/ben-carson-lgbt-homeless-rights/... (accessed June 1, 2018).

[4] Ryan Thoreson, “US Justice Department Looks to Curtail LGBT Protections,” Human Rights Watch, September 17, 2017, https://www.hrw.org/news/2017/09/13/us-justice-department-looks-curtail-... (accessed June 1, 2018); Ryan Thoreson; “US Justice Department Reverses Position on Transgender Discrimination,” Human Rights Watch, October 5, 2017, https://www.hrw.org/news/2017/10/05/us-justice-department-reverses-posit... (accessed June 1, 2018).

[5] See Centers for Disease Control and Prevention, “About LGBT Health,” March 24, 2017, https://www.cdc.gov/lgbthealth/about.htm (accessed June 1, 2018).

[6] Gilbert Gonzales, Julia Przedworski & Carrie Henning-Smith, “Comparison of Health and Health Risk Factors Between Lesbian, Gay, and Bisexual Adults and Heterosexual Adults in the United States, JAMA Internal Medicine, Vol. 176, No. 9 (2016), 1344-1351.

[7] Carl G. Streed, Ellen McCarthy & Jennifer S. Haas, “Association Between Gender Minority Status and Self-Reported Physical and Mental Health in the United States,” JAMA Internal Medicine, Vol. 177, No. 8 (2017), 1210-1212.

[8] Kellan Baker & Laura E. Durso, “Why Repealing the Affordable Care Act is Bad Medicine for LGBT Communities,” Center for American Progress, March 22, 2017, https://www.americanprogress.org/issues/lgbt/news/2017/03/22/428970/repe... (accessed June 1, 2018).

[9] Brief of Ilan H. Meyer, PhD., and Other Social Scientists and Legal Scholars Who Study the LGB Population as Amici Curiae Supporting Respondents, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111 (U.S. 2017), p. 21-22.

[10] Ibid., p. 23-24.

[11] Sejal Singh & Laura E. Durso, “Widespread Discrimination Continues to Shape LGBT People’s Lives in Both Subtle and Significant Ways,” Center for American Progress, May 2, 2017, https://www.americanprogress.org/issues/lgbt/news/2017/05/02/429529/wide... (accessed June 15, 2018).

[12] Brief of Ilan H. Meyer, PhD., and Other Social Scientists and Legal Scholars Who Study the LGB Population as Amici Curiae Supporting Respondents, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111 (U.S. 2017), p. 26.

[13] Mary Elizabeth Dallas, “‘Religious Refusal Laws May Take Mental Health Toll on LGBT Americans,” US News & World Report, May 23, 2018, https://health.usnews.com/health-care/articles/2018-05-23/religious-refu... (accessed June 15, 2018).

[14] Shabab Ahmed Mirza & Caitlin Rooney, “Discrimination Prevents LGBTQ People from Accessing Health Care,” Center for American Progress, January 18, 2018, https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/disc... (accessed June 1, 2018).

[15] Ibid.

[16] Sandy James et al., Executive Summary of the Report of the 2015 U.S. Transgender Survey, National Center for Transgender Equality (2016), https://transequality.org/sites/default/files/docs/usts/USTS-Executive-S... (accessed June 1, 2018).

[17] Shabab Ahmed Mirza & Caitlin Rooney, “Discrimination Prevents LGBTQ People from Accessing Health Care,” Center for American Progress, January 18, 2018, https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/disc... (accessed June 1, 2018).

[18] Sandy James et al., Executive Summary of the Report of the 2015 U.S. Transgender Survey, National Center for Transgender Equality (2016), https://transequality.org/sites/default/files/docs/usts/USTS-Executive-S... (accessed June 1, 2018).

[19] Movement Advancement Project, “Healthcare Laws and Policies: Private Insurance,” http://www.lgbtmap.org/equality-maps/healthcare_laws_and_policies (accessed April 30, 2018).

[20] Ibid.

[21] Movement Advancement Project, “Healthcare Laws and Policies: Medicaid,” http://www.lgbtmap.org/equality-maps/healthcare_laws_and_policies (accessed April 30, 2018). Litigants are challenging some of these restrictions. In June 2018, a court struck down Iowa’s ban on transition-related care under Medicaid. See Courtney Crowder, “A Judge Has Struck Down Iowa’s Medicaid Ban on Transgender Transition-Related Care. Here’s Why,” Des Moines Register, June 7, 2018, https://www.desmoinesregister.com/story/news/investigations/2018/06/07/i... (accessed June 14, 2018). A similar challenge is pending in Wisconsin. Ivan Moreno, “Transgender Residents Sue Over Wisconsin Medicaid Rule,” Chicago Tribune, April 30, 2018, http://www.chicagotribune.com/news/nationworld/midwest/ct-transgender-wi... (accessed June 14, 2018).

[22] 42 U.S.C. § 18116 (incorporating the antidiscrimination grounds from the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and Section 794 of Title 29).

[23] “Nondiscrimination in Health Programs and Activities; Final Rule,” 45 CFR 92, Federal Register Vol. 81, No. 96, May 18, 2016, https://www.gpo.gov/fdsys/pkg/FR-2016-05-18/pdf/2016-11458.pdf.

[24] Order, Franciscan Alliance v. Burwell, No. 7:16-cv-00108 (N.D. Tex. December 31, 2016), https://www.aclu.org/legal-document/franciscan-alliance-v-burwell-order-... (accessed June 1, 2018).

[25] Defendants’ Motion for Voluntary Remand and Stay, Franciscan Alliance, Inc. v. Price, No. 7:16-cv-00108 (N.D. Tex., May 2, 2017), https://transequality.org/sites/default/files/docs/releases/1557%20motio... (accessed June 1, 2018).

[26] Robert Pear, “Trump Plan Would Cut Back Health Care Protections for Transgender People,” New York Times, April 21, 2018, https://www.nytimes.com/2018/04/21/us/politics/trump-transgender-health-... (accessed June 1, 2018).

[27] See, e.g., Doe v. Boyertown Area School District, 2018 WL 3016864 (3d Cir. June 18, 2018); Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. May 30, 2017); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. Dec. 6, 2011); Smith v. City of Salem, 378 F.3d 566 (6th Cir. Aug. 5, 2004); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. June 8, 2000); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. Feb. 29, 2000).

[28] See, e.g., Zarda v. Altitude Express, No. 15-3775 (2nd Cir. February 26, 2018); Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. April 4, 2017).

[29] “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority,” 45 CFR 88, Federal Register Vol. 83, No. 18, January 26, 2018, https://www.gpo.gov/fdsys/pkg/FR-2018-01-26/pdf/2018-01226.pdf (accessed June 1, 2018).

[30] Human Rights Watch, “Human Rights Watch Letter to US Secretary of Health and Human Services Alex Azar,” March 27, 2018, https://www.hrw.org/news/2018/03/27/human-rights-watch-letter-us-secreta... (accessed June 1, 2018).

[31] “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority,” 45 CFR 88, Federal Register Vol. 83, No. 18, January 26, 2018, p. 3893, https://www.gpo.gov/fdsys/pkg/FR-2018-01-26/pdf/2018-01226.pdf (accessed June 1, 2018).

[32] Ibid., p. 3892.

[33] Ibid.

[34] US Department of Health and Human Services, “FY 2019 Budget in Brief,” February 19, 2018, p. 124, https://www.hhs.gov/sites/default/files/fy-2019-budget-in-brief.pdf (accessed June 1, 2018).

[35] 745 Ill. Comp. Stat. Ann. 70/5.

[36] 745 Ill. Comp. Stat. Ann. 70/6.1.

[37] See NIFLA, et al., v. Rauner, et al., 16 C 51030, (N.D. Ill., July 19, 2017); Thomas More Society, “Violations of Federal Law arising from Illinois Public Act 99-690,” January 4, 2018, https://www.thomasmoresociety.org/wp-content/uploads/2018/01/180104-HHS-... (accessed June 1, 2018).

[38] Tennessee Senate Bill 1556, 2016, sec. 1(a), https://legiscan.com/TN/text/SB1556/id/1319613/Tennessee-2015-SB1556-Dra... (accessed June 1, 2018).

[40] Mississippi House Bill 1523, 2016, sec. 2, http://billstatus.ls.state.ms.us/documents/2016/html/HB/1500-1599/HB1523... (accessed June 1, 2018).

[42] Shabab Ahmed Mirza & Caitlin Rooney, “Discrimination Prevents LGBTQ People from Accessing Health Care,” Center for American Progress, January 18, 2018, https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/disc... (accessed June 1, 2018).

[43] Ibid.

[44] Ibid.

[45] Joshua Khalili, Lucinda Leung & Allison Diamant, “Finding the Perfect Doctor: Identifying Lesbian, Gay, Bisexual, and Transgender-Competent Physicians,” American Journal of Public Health, Vol. 105, No. 6 (2015), 1114-1119.

[46] Human Rights Watch interview with Joe Miles, University of Tennessee, Knoxville, TN, December 8, 2017.

[47] Human Rights Watch interview with Mary Jo Schnell, OutCenter, Benton Harbor, MI, January 17, 2018.

[48] Human Rights Watch telephone interview with Paula R. (pseudonym), September 7, 2017.

[49] The term “gender expansive” describes expressions or behaviors that are broader than culturally dominant understandings of gender. Human Rights Watch telephone interview with Paula R. (pseudonym), September 7, 2017.

[50] Human Rights Watch interview with KT Hiestand, Memphis, TN, January 12, 2018; Human Rights Watch interview with Gail Stratton, Oxford, MS, January 13, 2017.

[51] Human Rights Watch interview with Nicole H., Lansing, MI, January 17, 2018; Human Rights Watch interview with Genny Maze, Equality Michigan, Detroit, MI, January 16, 2018.

[52] Human Rights Watch interview with Judith N. (pseudonym), Johnson City, TN, December 10, 2017.

[53] Human Rights Watch telephone interview with Sarah H. (pseudonym), Knoxville, TN, October 20, 2017.

[54] Human Rights Watch interview with Sam P. (pseudonym), Johnson City, TN, December 10, 2017.

[55] Human Rights Watch interview with Holly Calvasina, Choices, Memphis, TN, January 10, 2018; Human Rights Watch interview with Kayla Gore, OutMemphis, Memphis, TN, January 10, 2018; Human Rights Watch interview with Renae T., Memphis, TN, January 12, 2018.

[56] Human Rights Watch interview with Holly Calvasina, Choices, Memphis, TN, January 10, 2018.

[57] Sandy James et al., The Report of the 2015 U.S. Transgender Survey, National Center for Transgender Equality (2016), p. 103, https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report... (accessed June 1, 2018).

[58] Human Rights Watch interview with Shane Bierma, Knoxville, TN, December 9, 2017; Human Rights Watch interview with Peder Brue, Family Safety Center, Memphis, TN, January 10, 2018; Human Rights Watch interview with Holly Calvasina, Choices, Memphis, TN, January 10, 2018; Human Rights Watch interview with Diane Duke, Friends for Life, Memphis, TN, January 10, 2018; Human Rights Watch interview with Kathy Garner, Hattiesburg, MS, November 27, 2017; Human Rights Watch telephone interview with Mike Ziri, Equality Illinois, September 7, 2017.

[59] Human Rights Watch interview with Shane Bierma, Knoxville, TN, December 9, 2017.

[60] Human Rights Watch interview with Peder Brue, Family Safety Center, Memphis, TN, January 10, 2018.

[61] Human Rights Watch interview with Leiana C., Biloxi, MS, November 26, 2017.

[62] Human Rights Watch interview with Persephone Webb, Knoxville, TN, December 8, 2017.

[63] Human Rights Watch telephone interview with Paula R. (pseudonym), September 7, 2017.

[64] Human Rights Watch interview with Carla B. (pseudonym), Knoxville, TN, December 9, 2017.

[65] Human Rights Watch interview with Sam P. (pseudonym), Johnson City, TN, December 10, 2017; Human Rights Watch interview with Renae T., Memphis, TN, January 12, 2018.

[66] Human Rights Watch interview with Judith N. (pseudonym), Johnson City, TN, December 10, 2017.

[67] Alyssa Schneebaum & M.V. Lee Badgett, “Poverty in US Lesbian and Gay Couple Households,” Feminist Economics (2018), https://doi.org/10.1080/13545701.2018.1441533 (accessed June 28, 2018).

[68] Sandy James et al., Executive Summary of the Report of the 2015 U.S. Transgender Survey, National Center for Transgender Equality (2016), p. 3, https://transequality.org/sites/default/files/docs/usts/USTS-Executive-S... (accessed June 1, 2018). Comparable rates for the general population of the United States were 5 percent and 12 percent, respectively. Ibid.

[69] Kellan Baker & Laura E. Durso, “Why Repealing the Affordable Care Act is Bad Medicine for LGBT Communities,” Center for American Progress, March 22, 2017, https://www.americanprogress.org/issues/lgbt/news/2017/03/22/428970/repe... (accessed June 1, 2018).

[70] Sandy James et al., The Report of the 2015 U.S. Transgender Survey, National Center for Transgender Equality (2016), p. 98, https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report... (accessed June 1, 2018).

[71] Human Rights Watch interview with Sandra R. (pseudonym), Flint, MI, January 19, 2018. Advocates similarly noted that the electrolysis requirement could be prohibitively costly and time-consuming for those seeking to surgically transition. Human Rights Watch interview with Lilianna Reyes, Affirmations, Detroit, MI, January 19, 2018.

[72] Human Rights Watch telephone interview with Patrick Grzanka, University of Tennessee, Knoxville, TN, September 11, 2017.

[73] Human Rights Watch interview with Elliott Devore, University of Tennessee, Knoxville, TN, December 8, 2017.

[74] Shabab Ahmed Mirza & Caitlin Rooney, “Discrimination Prevents LGBTQ People from Accessing Health Care,” Center for American Progress, January 18, 2018, https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/disc... (accessed June 1, 2018).

[75] Human Rights Watch interview with Jeynce Poindexter, Equality Michigan, Detroit, MI, January 16, 2018.

[76] Human Rights Watch interview with Renae T., Memphis, TN, January 12, 2018.

[77] Human Rights Watch interview with Judith N. (pseudonym), Johnson City, TN, December 10, 2017.

[78] Human Rights Watch telephone interview with Karen W. (pseudonym), Biloxi, MS, October 4, 2017.

[79] Human Rights Watch interview with KT Hiestand, Memphis, TN, January 12, 2018.

[80] Human Rights Watch interview with Carla B. (pseudonym), Knoxville, TN, December 9, 2017.

[81] Human Rights Watch interview with Socorro Sevilla, Adrian, MI, January 16, 2018.

[82] Human Rights Watch interview with Trevor L. (pseudonym), Memphis, TN, January 10, 2018.

[83] Human Rights Watch interview with Kayla Gore, OutMemphis, Memphis, TN, January 10, 2018.

[84] Human Rights Watch interview with Holly Calvasina, Choices, Memphis, TN, January 10, 2018.

[85] Human Rights Watch interview with Shane Bierma, Knoxville, TN, December 9, 2017.

[86] Human Rights Watch interview with Kayla Gore, OutMemphis, Memphis, TN, January 10, 2018.

[87] Human Rights Watch, “All We Want is Equality”: Religious Exemptions and Discrimination against LGBT People in the United States, (New York: Human Rights Watch: 2018) https://www.hrw.org/sites/default/files/report_pdf/lgbt0218_web_1.pdf.

[88] Human Rights Watch interview with Leiana C., Gulfport, MS, November 26, 2017.

[89] Human Rights Watch interview with Elliott Devore, University of Tennessee, Knoxville, TN, December 8, 2017.

[90] Human Rights Watch telephone interview with Paula R. (pseudonym), September 7, 2017.

[91] Human Rights Watch telephone interview with Petra E., Biloxi, MS, October 4, 2017.

[92] Human Rights Watch interview with Jami Contreras, Ferndale, MI, January 18, 2018.

[93] Human Rights Watch interview with Jessica Shea, Memphis, TN, January 11, 2018.

[94] Human Rights Watch interview with KT Hiestand, Memphis, TN, January 12, 2018.

[95] Human Rights Watch interview with Larry Frampton, Nashville CARES, Nashville, TN, December 6, 2017.

[96] Human Rights Watch interview with Holly Calvasina, Choices, Memphis, TN, January 10, 2018.

[97] Human Rights Watch interview with KT Hiestand, Memphis, TN, January 12, 2018.

[98] See American Medical Association, Code of Medical Ethics Opinion 1.1.7, https://www.ama-assn.org/delivering-care/physician-exercise-conscience (accessed June 7, 2018); American Counseling Association, Code of Ethics, A.11, https://www.counseling.org/resources/aca-code-of-ethics.pdf (accessed June 7, 2018).

[99] Human Rights Watch interview with KT Hiestand, Memphis, TN, January 12, 2018.

[100] Human Rights Watch telephone interview with Lisa Scheps, Transgender Education Network of Texas, Austin, TX, October 4, 2017.

[101] Human Rights Watch telephone interview with Susan Berke Fogel, National Health Law Center, Los Angeles, CA, November 21, 2017.

[102] Sejal Singh & Laura E. Durso, “Widespread Discrimination Continues to Shape LGBT People’s Lives in Both Subtle and Significant Ways,” Center for American Progress, May 2, 2017, https://www.americanprogress.org/issues/lgbt/news/2017/05/02/429529/wide... (accessed June 15, 2018).

[103] Human Rights Watch telephone interview with Leticia Flores, University of Tennessee, Knoxville, TN, October 17, 2017.

[104] Human Rights Watch telephone interview with Lisa Henderson, Tennessee Counseling Association, Nashville, TN, December 12, 2017.

[105] Human Rights Watch interview with KT Hiestand, Memphis, TN, January 12, 2018.

[106] Human Rights Watch interview with Chris Sanders, Tennessee Equality Project, Nashville, TN, January 9, 2018.

[107] Human Rights Watch interview with Carla B. (pseudonym), Knoxville, TN, December 9, 2017.

[108] Human Rights Watch interview with Judith N. (pseudonym), Johnson City, TN, December 10, 2017.

[109] Human Rights Watch interview with Linda O. (pseudonym), Memphis, TN, January 10, 2018.

[110] Gwendolyn P. Quinn et al. “Cancer and Lesbian, Gay, Bisexual, Transgender/Transsexual, and Queer/Questioning (LGBTQ) Populations,” CA: A Cancer Journal for Clinicians, Vol. 65, No. 5 (2015), 384-400; KR Heistand, SG Horne & HM Levitt, “Effects of Gender Identity on Experiences of Healthcare for Sexual Minority Women,” Journal of LGBT Health Research, Vol. 3, No. 4 (2007), 15-27.

[111] Christina L. Tamargo et al., “Cancer and the LGBTQ Population: Quantitative and Qualitative Results from an Oncology Providers’ Survey on Knowledge, Attitudes, and Practice Behaviors,” Journal of Clinical Medicine, Vol. 6, No. 10 (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5664008/#B23-jcm-06-00093 (accessed June 28, 2018).

[112] Human Rights Watch interview with Judith N. (pseudonym), Johnson City, TN, December 10, 2017; Human Rights Watch interview with Sam P. (pseudonym), Johnson City, TN, December 10, 2017; Human Rights Watch interview with Dara O. (pseudonym), Oklahoma City, OK, June 6, 2018; Human Rights Watch interview with Rachel Y. (pseudonym), Oklahoma City, OK, June 7, 2018.

[113] Human Rights Watch interview with Charlie O. (pseudonym), Jackson, MS, November 27, 2017.

[114] Human Rights Watch interview with Carla B. (pseudonym), Knoxville, TN, December 9, 2017.

[115] Human Rights Watch interview with Shane Bierma, Knoxville, TN, December 9, 2017.

[116] Human Rights Watch interview with Jami Contreras, Ferndale, MI, January 18, 2018.

[117] Human Rights Watch interview with Gail Stratton, Oxford, MS, January 13, 2017.

[118] Human Rights Watch interview with Sandra R. (pseudonym), Flint, MI, January 19, 2018.

[119] Human Rights Watch interview with Persephone Webb, Knoxville, TN, December 8, 2017.

[120] Human Rights Watch telephone interview with Petra E., Biloxi, MS, October 4, 2017.

[121] Human Rights Watch interview with Sarah H. (pseudonym), Knoxville, TN, December 9, 2017.

[122] ICCPR, art. 26.

[123] UN Human Rights Committee, Toonen v Australia, CCPR/C/50/D/488/1992 (March 31, 1994), http://hrlibrary.umn.edu/undocs/html/vws488.htm (accessed June 1, 2018). The Human Rights Committee frequently expresses concern about discrimination based on gender identity in its concluding observations on state compliance with the ICCPR. See UN Human Rights Committee, Concluding Observations: Azerbaijan, U.N. Doc CCPR/C/AZE/CO/4 (November 16, 2016), paras. 8-9; UN Human Rights Committee, Concluding Observations: Burkina Faso, U.N. Doc CCPR/C/BFA/CO/1 (October 17, 2016), paras. 13-14; UN Human Rights Committee, Concluding Observations: Colombia, U.N. Doc CCPR/C/COL/CO/7 (November 17, 2016), paras. 16-17; UN Human Rights Committee, Concluding Observations: Costa Rica, U.N. Doc CCPR/C/CRI/CO/6 (April 21, 2016), paras. 11-12; UN Human Rights Committee, Concluding Observations: Denmark, U.N. Doc CCPR/C/DNK/CO/6 (August 15, 2016), paras. 13-14; UN Human Rights Committee, Concluding Observations: Ecuador, U.N. Doc CCPR/C/ECU/CO/6 (August 11, 2016), paras. 11-12; UN Human Rights Committee, Concluding Observations: Ghana, U.N. Doc CCPR/C/GHA/CO/1 (August 9, 2016), paras. 43-44; UN Human Rights Committee, Concluding Observations: Jamaica, U.N. Doc CCPR/C/JAM/CO/4 (November 22, 2016), paras. 15-16; UN Human Rights Committee, Concluding Observations: Kazakhstan, U.N. Doc CCPR/C/KAZ/CO/2 (August 9, 2016), paras. 9-10; UN Human Rights Committee, Concluding Observations: Kuwait, U.N. Doc CCPR/C/KWT/CO/3 (August 11, 2016), paras. 12-13; UN Human Rights Committee, Concluding Observations: Morocco, U.N. Doc CCPR/C/MAR/CO/6 (December 1, 2016), paras. 11-12; UN Human Rights Committee, Concluding Observations: Slovakia, U.N. Doc CCPR/C/SVK/CO/4 (November 22, 2016), paras. 14-15; UN Human Rights Committee, Concluding Observations: South Africa, U.N. Doc CCPR/C/ZAF/CO/1 (April 27, 2016), paras. 20-21.

[124] ICCPR art. 18(1).

[125] Human Rights Committee, General Comment 22, “Article 18: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,” 1994, UN Doc. HRI/GEN/1/Rev.1, paras. 3-4.

[126] ICCPR art. 18(3); see also art. 5(1) (“Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.”).

[127] See Human Rights Committee, General Comment 28, “Article 3 (The Equality of Rights Between Men and Women),” March 29, 2000, UN Doc. CCPR/C/21/Rev.1/Add.10, para. 21 (“Article 18 may not be relied upon to justify discrimination against women by reference to freedom of thought, conscience, and religion.”); Human Rights Committee, General Comment 22, “Article 18: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,” 1994, UN Doc. HRI/GEN/1/Rev.1, para. 2 (“The committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.”); ibid. at 7 (noting that “no manifestation of religion or belief may amount to … advocacy of national, racial, or religious hatred that constitutes incitement to discrimination” and that “States parties are under the obligation to enact laws to prohibit such acts.”).

[128] Human Rights Committee, General Comment 22, “Article 18: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,” 1994, UN Doc. HRI/GEN/1/Rev.1, para. 8.

[129] ICCPR, art. 19(2); American Convention on Human Rights, art. 13(1). See also Inter-American Court, Claude-Reyes and others Case, Judgment of September 19, 2006 Inter-Am Ct.H.R., Series C. No. 151, para. 264.

[130] See ICESCR, article 2(2). See also CESCR, “General Comment No. 14, The Right to the Highest Attainable Standard of Health,” U.N. Doc. E/C.12/2000/4 (2000), paras. 12(b), 18, 19.

[131] Ibid., para. 11.

[132] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A

(XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, art. 12.

[133] UN Committee on Economic, Social and Cultural Rights, General Comment No. 20: “Non-Discrimination in Economic, Social and Cultural Rights”, U.N. Doc. E/C.12/GC/20, July 2, 2009, para. 32.

[134] Ibid. para. 10.

[135] Ibid., para. 11.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am