Should Catholic health plans cover transgender surgeries? Settlement raises questions

Seattle, Wash., Jan 15, 2019 / 00:03 am

A Catholic healthcare network has settled an ACLU lawsuit over transgender surgeries, saying that it has covered these procedures in its employee medical plan since January 2017.

Plaintiffs in the suit said they want Catholic employers to cover minors' transition surgeries as well, though one leading Catholic ethicist says Catholic institutions can't ethically provide these health plan options for anyone, adults or minors.

"People who suffer from gender dysphoria exhibit great anguish. We can acknowledge this and should accompany them on a personal level and try to offer effective interventions," John F. Brehany, director of institutional relations at the National Catholic Bioethics Center, told CNA.

"However, just because someone requests some intervention doesn't mean it should be provided. Sometimes people who are depressed request assistance in suicide, but no one, including Catholics, should provide such assistance."

Brehany said such coverage falls short on Catholic ethical grounds and the medical evidence for the benefits of these surgeries is lacking.

"There is no clear and compelling evidence that gender transitioning interventions 'cure' or resolve the anguish of people suffering extreme distress from gender dysphoria. In fact, there is some evidence that those who complete sex reassignment surgery are more likely to commit suicide than those who do not."

In October 2017, the American Civil Liberties Union of Washington filed a federal lawsuit against PeaceHealth on behalf of an employee claiming it was "discriminatory and illegal" for the medical plan not to cover a mastectomy and chest reconstruction for a 16-year-old child who identifies as transgender.

The ACLU affiliate said the minor, Paxton Enstad, was born female and has "a male gender identity." A doctor had prescribed the mastectomy and chest reconstruction but the health plan declined to cover it, citing a lack of coverage for "transgender services."

PeaceHealth and the plaintiffs "reached a mutually agreeable settlement of the litigation," the ACLU affiliate said Jan. 2.

"We applaud PeaceHealth's decision to include coverage for transition-related care in their employee medical plan, and hope it will set a good example for other employers to follow suit," said Lisa Nowlin, a staff attorney with the ACLU of Washington.

The lawsuit charged that not including these services in the medical plan coverage constituted discrimination under the Affordable Care Act and Washington state anti-discrimination law, the Bellingham Herald reports.

"PeaceHealth was telling me my son was undeserving of medical care simply because he's transgender. It's heartbreaking. It is not fair," Cheryl Enstad, the mother of the young patient, said at a press conference after the lawsuit was filed.

From 1996 to 2017, Cheryl was a medical social worker at PeaceHealth St. Joseph Medical Center in Bellingham, Wash., a coastal city near the Canadian border.

PeaceHealth is based in Vancouver, with over 15,000 employees and 10 medical centers in Oregon, Washington and Alaska. It traces its history to the institution founded in 1890 by the Sisters of St. Joseph. On its website it describes itself as "the legacy of the founding Sisters" that "continues with a spirit of respect, stewardship, collaboration and social justice in fulfilling its mission."

Its system's Dec. 21, 2018 announcement described its history of employee health care coverage for transgender care.

"In 2016, prior to the filing of the Enstad lawsuit, PeaceHealth began the process of updating its employee medical plan," the healthcare network said. "Effective January 1, 2017, PeaceHealth's employee medical plan was changed to cover medically necessary transgender surgery as determined under Aetna's Gender Reassignment Surgery policy, a nationally-recognized guideline."

Brehany said Catholic institutions should not cover such services because "they are often provided based on the mistaken belief that one can and may change his or her outward bodily appearance in a significant manner to match an inner belief about 'true gender identity'."

Catholic ethics includes principles like "respect for the body as created" and "the inadmissibility of mutilating or destroying one's body or parts," he said.

Brehany's organization, the National Catholic Bioethics Center, does not provide medical or legal advice, but "ethical discernment" about bioethical issues based on Church teaching and the Catholic moral tradition.

For Cheryl Enstad, the result was "bittersweet" because the policy change did not go far enough.

"Our number one priority in bringing this case was to ensure access to gender-affirming care for transgender people, and we are pleased PeaceHealth changed its policy," she said. But we hope that PeaceHealth eventually removes the age-related limitation on coverage."

The plaintiffs in the lawsuit still objected to the amended policy because Aetna's gender reassignment coverage does not include mastectomies and chest reconstruction surgery as a treatment for gender dysphoria

Because Paxton is no longer a minor, the lawsuit cannot challenge the amended plan.

The PeaceHealth statement stressed its commitment to "an inclusive healthcare environment for all" and said it "does not discriminate based on sex, sexual orientation, gender identity or any other basis prohibited by applicable federal, state, or local law."

(Story continues below)

In its over 100 years of service, it said, "we have been dedicated to embracing and celebrating the diversity of our communities, our caregivers and the individuals we are privileged to serve."

Paxton's problems reportedly began around puberty, with poor functioning and withdrawal from activities. Attempts to treat depression had little effect, the northwestern U.S. news site Crosscut said.

Paxton claimed to have self-diagnosed gender dysphoria through self-research.

Paxton's doctor suggested the surgery, which took place in 2016. The family took out a second mortgage and used college fund money, but also paid $11,000 out of pocket for the operation.

Brehany said there is a need for caution in accepting minors' claims about their identity.

"Minors in particular should be protected from their own immaturity and from advocacy organizations who claim to have their best interests at heart," he told CNA. "The vast majority of minors resolve doubts about their gender identity by age 18. Interventions, such as puberty blockers, provided early in life make it harder to accept that biological sexual identity and can cause major health and developmental issues, including sterility."

The ACLU cited standards of care from the World Professional Association for Transgender Health, saying these standards are recognized as authoritative by the American Medical Association, the American Psychological Association, and the American Academy of Pediatrics.

These standards mean "it may be medically necessary for some transgender people to undergo treatment to affirm their gender identity and transition from living as one gender to another." This treatment may include hormone therapy, surgery and other medical services that "align individuals' bodies with their gender identities."

According to Brehany, the World Professional Association for Transgender Health is "comprised significantly of people committed to using the full resources of medicine to support people in their mistaken beliefs."

"Most secular standard medical societies have gone along because their leadership complies with the demands of activists," he said. "Their position statements or guidelines often do not represent the beliefs of most of their members."

The ACLU of Washington is in legal action against another Catholic non-profit hospital network, Providence Health and Services, and its affiliate Swedish Health Services. Providence is the largest healthcare provider in the state.

That lawsuit, filed in December 2017, concerns a 30-year-old law student's claims that his chest reconstruction surgery was abruptly canceled.

Omar Gonzalez-Pagan, a senior attorney with the LGBT legal group Lambda Legal, said that employer plans appear to be changing to include transgender services, many individual hospitals and doctors, especially Catholic ones, decline such services on the grounds of religious exemptions.

"It is a growing problem that we are seeing nationally because of the consolidation of hospitals," he told Crosscut, noting that most hospitals in Washington state are Catholic-affiliated.

For several decades the national ACLU has been charging that Catholic hospitals wrongly refuse certain medical procedures, like sterilization and abortion, that the legal group says are necessary to ensure reproductive rights.

There is also a growing effort, based out of social change funders and strategists like the New York-based Arcus Foundation and the Massachusetts-based Proteus Fund, to limit religious freedom they consider to be discriminatory and in violation of what they consider to be LGBT or reproductive rights.