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.
This past week, a committee of the Seattle City Council approved an ordinance that, if approved by the full Council, will require businesses in the city to provide compensated sick leave to their employees. Local news coverage of the developing story is available here, here, and here. Some think of this effort as an important public health measure, designed to encourage sick employees to stay home. Others think of it as an unnecessary increase in business operating costs.
First, let’s take a look at a few of the specifics in the ordinance. Paid sick leave accrues at varying rates depending on the size of the employer (1 hour of leave for every 30-50 hours worked), and the rates increase with the size of the employer. Similarly, the maximum amount of sick leave that an employee might accrue depends on the size of the employer (40-72 hours per year), and the limits increase with the size of the employer. Unused sick time from one year rolls over to the next. Sick leave may be used for a variety of reasons, including an employee’s personal illness (mental or physical), to get preventive health care (such as an annual check-up), to care for a sick family member, and numerous reasons associated with domestic violence, sexual assault, or stalking (including legal proceedings). Employers may not retaliate against employees for using their sick leave. New businesses are exempt from compliance for 2 years.
Then take a look at the details of how employees will access their sick leave. All requests for sick leave should include the expected duration. If possible, the request must be submitted in writing at least 10 days in advance. Documentation (such as a doctor’s note or, in the case of domestic violence, a police report) may be required, if an employer so chooses, for leave lasting more than 3 consecutive days.
Finally, take a look at how the sick leave mandate will be enforced. A claim by one or more employees that an employer violated the ordinance must be submitted in writing to the Seattle Office of Civil Rights within 6 months of the violation. The Seattle OCR will investigate the claim and determine its validity. If the claim is determined to be valid, then the parties can settle it (probably meaning that the employer pays the employee some sum of money) or the claim can go forward for additional prosecution either by the employee(s), in court, or by the Seattle City Attorney, before the Seattle Office of the Hearing Examiner. If a hearing starts with the Office of the Hearing Examiner, then the employee(s) lose their right to proceed in court. There is no time limit for OCR to issue its determination; the ordinance simply says that the determination must be issued “promptly.” That determination is a precursor for any further proceedings. In other words, an employee cannot sue in court without the OCR decision.
A few thoughts and questions about this law and real life:
- Who is served here? Employers? Employees? Customers?
- Smaller employers may be concerned about increased operations costs, but are the costs worth the benefits? One or two days off to recover from a cold, for example, may be better than a week’s worth of decreased productivity on the job and the risk of getting other employees sick.
- What about the proof? How many employees will be able to get a doctor’s note if they have the flu and it takes a week to get over it? What about employees seeking paid sick leave because of domestic violence — is it reasonable to require that these survivors submit police reports and other documentation of abuse to their employers?
- What about the records? Employers are supposed to keep the proof separate from the personnel files when the proof contains medical diagnoses. Is it reasonable to mandate that smaller employers do this? How would employees find out about violations?
- Employers are not allowed to fire employees for taking sick leave, but they can fire at-will employees for a variety of other legitimate business purposes, and if they can show that those other reasons exist, then the employees are probably out of luck.
- It might take a really long time to process a claim… is a decision for the employee, issued 3 years after the violation, worth much once it finally arrives?
- A few years back, President Obama backed the Healthy Families Act (stuck in committee since 2009), which included a similar sick leave provision. (Read a bit about it here.) Is it better to go national with this kind of law? Would it ever pass? Consider similar efforts at the local level in Milwaukee, San Francisco, Denver, Washington D.C., Philadelphia, and New York City. Also consider efforts at the state level in Connecticut, Massachusetts, and California. If it’s a local issue, would businesses move out of the area to avoid compliance?