Feds investigate hospitals over religious exemptions from gender-affirming care

Miami Herald

3 days ago

The Trump administration has launched investigations into health care organizations in an effort to allow providers to refuse care for transgender patients on religious or moral grounds.
One of the most recent actions by the Department of Health and Human Services, launched in mid-June, targets the University of Michigan Health system over a former employee's claims that she was fired for requesting a religious exemption from providing gender-affirming care.
An administration release announcing the probe says the Michigan case is the third investigation in "a larger effort to strengthen enforcement of laws protecting conscience and religious exercise" for medical providers, citing federal laws known as the Church Amendments.
The probes are the first time HHS has explicitly claimed the amendments "allow providers to refuse gender-affirming care or to misgender patients," said Elizabeth Sepper, a professor at the University of Texas who studies conscience laws. Those laws, Sepper said, primarily allow objections to performing abortions or sterilizations but "don't apply to gender-affirming care, by their very own text."
But religious freedom groups that supported the health worker in the Michigan case, Valerie Kloosterman, say the investigation is a welcome recognition of existing protections for medical professionals to refuse to provide some types of care that conflict with their beliefs.
"We are pleased to learn that the Department of Health and Human Services is taking its responsibility seriously to enforce the federal statutes protecting religious health care providers," said Kloosterman's attorney Kayla Toney, of the First Liberty Institute, which advocates for religious liberty plaintiffs.
The two other cases HHS announced in recent months involve ultrasound technicians who didn't want to be involved in "abortion procedures contrary to their religious beliefs or moral convictions," and a nurse who asked for a religious exemption to "avoid administering puberty blockers and cross-sex hormones to children," according to HHS. The department did not disclose the locations for those investigations.
Sepper said opening investigations into gender-affirming care cases is a new tactic for HHS after federal courts blocked a 2019 effort by the previous Trump administration to broaden conscience rules.
And it sends a message that this administration will "investigate or otherwise harass providers of gender-affirming care, even when that provision is legal in the states where they operate," said Sam Bagenstos, a general counsel at HHS during the Biden administration and a professor at the University of Michigan.
HHS spokesperson Andrew Nixon declined to comment, citing the ongoing investigation.
HHS launched its investigation years after Kloosterman filed a lawsuit against her former employer. She started working for Metropolitan Hospital in Caledonia, Michigan, as a physician assistant in 2004. When the hospital merged to become part of University of Michigan Health-West in 2021, Kloosterman took part in a "mandatory diversity training," according to a federal lawsuit filed in 2022.
In that training and follow-up discussions, the health system "attempted to compel Ms. Kloosterman to pledge, against her sincerely held religious convictions and her medical conscience, that she would speak biology-obscuring pronouns and make referrals for 'gender transition' drugs and procedures," according to the lawsuit by Kloosterman's attorneys.
These were, at this point, purely hypotheticals: "No patient ever asked her for a referral for such drugs or procedures, and she never used pronouns contrary to a patient's wishes," the suit claimed.
But when Kloosterman requested a religious accommodation, she was "summoned" to a meeting with administrators, who "called her 'evil' and a 'liar,' mockingly told her that she could not take the Bible or her religious beliefs to work with her, and blamed her for gender dysphoria-related suicides," according to the lawsuit, which alleges she was fired in August 2021, shortly after the meeting.
The health system denied all allegations, and in April 2024, U.S. District Judge Jane Beckering dismissed Kloosterman's case to proceed into arbitration. Kloosterman's lawyers filed an appeal with the U.S. Court of Appeals for the 6th Circuit. Appellate judges heard oral arguments in the case in February but have not issued a decision.
HHS initiated its investigation under the Church Amendments because it's "committed to enforcing Federal conscience laws in health care," said Paula M. Stannard, director of the department's Office for Civil Rights, in a statement announcing the investigation. "Health care workers should be able to practice both their professions and their faith."
But the investigation "represents a real expansion beyond what the Trump administration did in the first term, and also in terms of the text of the law," Sepper said.
The Church Amendments date to the 1970s and allow health care institutions and providers to refuse to participate in abortion or sterilization procedures.
"Some of these also apply to end-of-life care and to physician aid in dying. So they have relatively narrow scope," Sepper said. "They focus on a set of procedures. They don't allow health care providers or institutions to refuse to provide all kinds of care based on their religious or moral objections."
There is one broader provision in these laws that "is about the conscience-based decision to perform, or not to perform, a lawful medical procedure," said Bagenstos, the former HHS general counsel during the Biden administration. But that applies only to recipients of a "grant or contract for biomedical or behavioral research," he said. So this case is "an extreme stretch of the conscience protections, and probably more than a stretch."
But Ismail Royer, director of Islam and religious freedom at the Religious Freedom Institute, which filed an amicus brief supporting Kloosterman's lawsuit, said the Church Amendments are just a few of the laws HHS enforces, along with broad civil rights protections and laws that prohibit discrimination on the basis of religion.
"This is not a case where someone is refusing to treat someone who is LGBT," Royer said. "This is a case of someone who does not believe that they should be forced to use pronouns that would constitute a lie."
Other providers are available if a patient's "feelings are hurt," he said. "But hurt feelings do not constitute the basis for the government violating our constitutional rights."
The stakes for a health system are very different in an HHS investigation than in civil suits, Sepper said. The government agency, which oversees the vast majority of health care spending, could decide to strip Medicare and Medicaid funding from the health system. HHS has previously been hesitant to remove funding, Sepper said.
But it would be highly unusual - and possibly illegal - for HHS to actually withhold funding from the health system over a case like this, Bagenstos said.
By taking up these investigations so publicly, Sepper said, HHS is putting health systems "in a very difficult situation." Antidiscrimination laws require them to treat transgender patients equally, she said. But now the administration is prioritizing "employees that might want to make it more difficult for transgender patients to receive care."
These investigations are "meant to offer red meat to the anti-LGBT rights movement, to tell them that HHS is squarely on their side," Sepper said.
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This article is from a partnership with Michigan Public and NPR.
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