A recent NYT story retells the story of a patient who needed a catheter. The patient presented as female, engaging in certain feminine gender performative behaviors. The day of the surgery arrived and, lo and behold, the surgeon was surprised to find a biological male. It seems the pre-operative work-up did not include sufficient discussion with the patient or a physical examination of the patient’s body into which the surgeon was soon to cut.
The real life problem is apparent. Non-gender-normative individuals have a much more difficult time finding meaningful access to health care. As the article depicts, this is not the first instance of or revelation about this type of problem.
Recent HHS recommendations seem to attempt to curtail this effect. Among other things, “HHS will encourage new and existing health profession training programs, including behavioral health … programs, to include LGBT cultural competency curricula. The lack of culturally competent providers is a significant barrier to quality health care for many LGBT people, particularly those who identify as transgender.” But, as the article notes, this proposed future action simply hasn’t cut it. At least, not yet.
This is where the law enters the discussion. Recommendations from Health and Human Services are just that. Recommendations. What is the law doing to mandate so-called “culturally competent” health care delivery? Frankly, nothing.
Take Massachusetts as an example. The first state to legalize gay marriage and the 16th state to pass a gender identity equality bill governs physician licensing by statute and regulation, none of which require this cultural competency. Medical school accreditation standards similarly do not require training on this specific type of bedside manner and patient care, though a couple of standards perhaps come close (see ED-22 and ED-23).
So, it might seem that the easy solution is to legally mandate queer-friendly interpersonal skills sensitivity training for health care professionals. The question becomes — how? How can the law mandate good interpersonal skills, and how could such a mandate be enforced? Should medical malpractice lawsuits be filed based on a failure to engage with patients in a respectful and meaningful way? In the case described in the NYT article, the patient outcome wasn’t one that would typically fall into the medical malpractice category; the catheter insertion procedure went well. Assuming this were to become the default regulation, is it feasible given the time and money required to file a suit these days? Would such a requirement run into conflict with conscience clauses?
The question boils down to whether the law can, and should, require sensitivity to gender identity and other non-hegemonic identities or classifications in health care delivery (and potentially in other spheres of social service systems as well). This is a real life social problem, but to date, the law has not been a player.
I look forward to your comments.