In health care, questions can arise about the gender of physicians, nurses and interpreters when involved in the treatment of patients. For example, a woman undergoing a gynecological exam may prefer a female care team while a man being examined for prostate cancer could prefer male health care attendants. Such gender preferences do occur. How health care providers respond to such expressed preferences have significant legal implications.
During a recent conversation I had with a large hospital about the new Section 1557 rules, a question arose about the new rules barring patients’ gender preferences for their interpreters. The hospital’s question peaked my interest. Like many issues that involve legal analysis, the answer can be complicated.
Federal Law and Patients’ Preferences for Health Care Provider Gender
Federal law prohibits health care providers from abetting, ratifying, or agreeing to patients’ discriminatory disdain of receiving health care from health care professionals, including interpreters, because of these professionals’ race, color, national origin, religion, language, or gender, for example. If such resistance is informed by a patient’s prejudice or racism, a health care provider shall not agree essentially to segregate staff because of a patient’s prohibited preferences. For example, in recent years, the U.S. Department of Health & Human Services (HHS) sanctioned a provider for agreeing to a white patient’s demands that he not be touched or cared for by African-Americans. His demands, HHS’s investigation revealed, were borne of racial prejudice.
But what about patient gender preference requests that arise from patients’ culture, national origin, or religion? Can a hospital effectively force a patient to be cared for by health care professionals of one gender or another?
Before the Section 1557 rules became law on July 18, 2016, HHS received comments asking that the final rules reflect patients’ gender preferences for interpreters. According to HHS, “These commenters suggested that patients may not be comfortable with interpreters of the opposite gender, particularly in settings that involve nudity such as in obstetrics and gynecology appointment.”
HHS declined to adopt the commenters’ suggestion, stating that HHS believes that an interpreter of any gender “can …. adequately perform the interpretation duties required of him or her… [A]cceding to the commenter’s request could result in gender discrimination.”
Respecting Patients’ Religious and Cultural Imperatives
A hospital or clinic cannot legally provide only female doctors for female patients and male nurses for male patients. The same dynamic is true for interpreters and all other members of the health care team. Providers cannot enable and ratify the gender preferences of patients if those preferences are motivated by prejudice and illegal discrimination, as was true in the above case of the white patient refusing to be treated by African-American staff.
However, a patient’s genuine religious and cultural imperatives concerning sexual modesty, gender, and health care privacy can be very different.
Such imperatives are protected by federal law. If these imperatives are expressed by patients when faced with a collision between their religious or cultural beliefs and an interpreter’s gender, the Section 1557 rules, in my opinion, do not bar those preferences from being discussed, examined, and perhaps upheld.
The issues surrounding this complex, fraught question are best resolved by ensuring health care staff are effectively trained in cultural awareness. They can then respond accordingly by talking with the patient to understand his or her health care team gender preference and honor the preference where appropriate, where the preference does not ratify racism, prejudice, or misogyny.
Make Culturally Competent Decisions
Dismissing the patient’s gender preference by assuming that such preference is illegal without a thoughtful inquiry about the preference’s origin and motivation can disserve the patient, the interpreter, and all members of the health care team.
Such dismissal can also disserve the new health care civil rights rules. Section 1557 is arguably the most comprehensive civil rights law for health care in U.S. history, with protections against discrimination based on race, color, sex, national origin, language, age, sexual identity, and sex stereotyping. As with all laws, the new regulations go in many complex directions. Careful legal analysis and guidance are needed to understand the new Section 1557 regulations to avoid misconstruing genuine religious or cultural beliefs as illegal discrimination. The proof is informed by the cultural awareness of hospital staff and leadership.
Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson, special for Bromberg. 2017 All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Attorney.
Mr. Adelson teaches cultural and civil rights awareness at Georgetown University School of Medicine in Washington, D.C.