The Conscience Chronicles

UPDATE: As this was being readied for posting, the Standing Committee on Private Bills and Private Members’ Public Bills voted to recommend that Bill 207 not move forward in its current form, meaning that the bill will not be proceeding to the floor. I have elected to post this anyway, given the possibility that the proposal might be resurrected and amended at a later date.

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At a first casual glance, the stated premise of Alberta’s Bill 207, Conscience Rights (Health Care Providers) Protection Act, might sound reasonable: most people wouldn’t expect medical professionals who object to procedures like abortion to be required to perform them.

In practice, Alberta’s College of Physicians and Surgeons already allows medical professionals to opt out of medical procedures that they have a religious objection to (a status quo that is at times problematic), so long as they provide any referral or direction to comprehensive information needed, ensuring that their patient still receives care in a timely manner. Bill 207 removes the obligation to refer and / or ensure patient care — using the reasoning that providing a referral is sort of like participating in the procedure. Regardless of any urgency or medical appropriateness of care in any given situation, this change allows refusals to increase the time delay to accessing care (regardless of any urgency), put the burden of medical care back on the patient, and be a kind of barrier and discouragement, if not more. Indeed, it can be like making someone start over from scratch. Proponents of the bill say that because medical care is still available elsewhere, it isn’t really being denied, which is technically true… but the time, emotional and informational barriers cannot be discounted.

But while those advancing the bill claim it is only codifying that status quo in law, there are more things that Bill 207 does, many of which have received little attention by media.

The bill extends conscience rights to health care organizations, as well. While religious care organizations have already asserted conscience objections in many ways already, this codifies it in law. It also allows organizations to assert their conscience-based decisions over those of their facilities, staff and resources. By way of example, Covenant Health (Canada’s largest Catholic health care provider) owns 16 health care facilities throughout the province, including two major hospitals in Edmonton; its affiliate Covenant Care owns another seven assisted living and long-term care facilities. In some rural areas of Alberta, all or most facilities are religious-owned.

In short, this moves Alberta down a landscape in which anyone in the chain of service provision — from facility administration to lab technician and pharmacist — can create a roadblock to services, without consequence. This becomes even more concerning when one realizes the potential for administrative staff, clergy or even outside groups to apply pressure to doctors and clinics to deny services that they might not otherwise have initially had objections to.

In fact, by the text of the law, it is left entirely up to the health care provider or religious health care organization to determine if their conscientious beliefs would be infringed, and there really is no appeal process to see if there is some agreeable compromise. No record is kept, leaving no way to follow up to ascertain if the patient has ever received the care they needed or sought. Gathering statistics about patients denied care in order to inspect what consequences the law has had becomes impossible, as demonstrated elsewhere.

By the text of the law, if a regulatory body receives a complaint about denial of care having to do with conscience, the complaint must be discarded (there is a caveat that complaints or portions thereof that are not conscience-related are not discarded). They are not allowed to investigate or question the decision:

5(1)  On receiving a complaint in accordance with section 55(1) of the Health Professions Act, the subject matter of which is a health care provider’s decision not to provide a health care service based on their conscientious beliefs, the complaints director for the regulatory body that received the complaint must immediately

(a) dismiss the complaint, and

(b) provide notice of the dismissal to the complainant.

It also specifies that by law, “a health care provider’s decision to not provide a health care service based on their conscientious beliefs is not to be considered as unprofessional conduct,” and providers and / or organizations are immediately shielded from legal liability.

There is also an amendment to Section 7(1) of the Alberta Human Rights Act, to immediately shield any employee from termination or discrimination based on their conscientious beliefs. This amendment is not restricted in any way to the medical profession, and could conceivably provide a shield for harassment and abuse of one’s co-workers or customers because of one’s religious or conscientious beliefs.

The bill’s proponent, MLA Dan Williams, has promised a number of amendments to Bill 207, but in those proposed changes, none of these points is substantively changed. One of his proposals — to restore a duty to assist “if not providing the health care service would result in an imminent risk of death” — isn’t altogether reassuring about the thought that was put into the bill in the first place… but even with that change, there is no clarification on whether or how the legal shield and barriers to reporting and investigation might be changed in the event of a patient’s death (especially in cases in which it was not thought that there would be an “imminent risk”).

There are many hypothetical situations that one can suggest could arise as a result of this legislation. But this is not uncharted territory. It is very easy to look at places where “conscience” exemptions have been implemented or attempted — or where medical personnel or organizations have attempted to assert their conscience rights — and see how it has affected medical care for patients.

“I was nervous and excited about the consult for my first intrauterine device (IUD) at MedStar Georgetown University Hospital. After a brief conversation, Dr. Case (a pseudonym) asked me to get off the exam table and follow her to her office for a ‘chat.’ But in her office, when the door was safely shut, my excitement slowly started to fade. ‘Well, first things first, this is a Catholic hospital,’ she said in a mock whisper…”

Evann Normandin, writing at Rewire this past May, described what happened to her when hospital policy prevented her from getting an IUD. She left with a referral… and shaming. Although referrals don’t come with the added expense of multiple visits in Alberta, like south of the border, the expense of time and transportation remain, and can pale in comparison to the emotional cost of the refusal itself:

“… On my way out of the labyrinthian building, I scrunched up the unofficial paper in my hand. The ripped edges felt sharp against my skin. In the Uber ride home, after paying transportation to and from my apartment to a world-class hospital and forking over a $50 copay for unsolicited advice about my vagina, I cried…”

At Huffington Post, Ace Ratcliff described her fight with doctors over her need for a hysterectomy:

“My illness’ severity [hypermobile Ehlers-Danlos syndrome] led me to the conclusion early on that childbirth would irreparably damage my already broken body and would never be the right choice for me. My joints dislocate painfully and at random. I have difficulty swallowing food. I bruise like an overripe peach. I faint if I have to stand for too long. Wounds take much longer to heal on me than on a normal human.

“… Somehow, my personal autonomy, my health and my comfort didn’t rate high enough to outrank the desires of my future, then-nonexistent partner. And nothing I said could change my doctors’ minds [about a surgical hysterectomy], not the stories about my frequently dislocating hips, my mom’s complicated pregnancies or the increased rate of miscarriage and preterm labor for EDS patients…”

In another instance, the hospital’s policies would have allowed the removal of a dislodged IUD, but the doctor thought the policies wouldn’t, and refused care. The patient was sent home, limited in her options by her insurance company (not applicable in Alberta, but limits on options can occur because of other factors, such as rural accessibility), and she ultimately had to file suit:

“Her doctor confirmed the IUD was dislodged and had to be removed. But the doctor said she would be unable to remove the IUD, citing Catholic restrictions followed by Mercy Hospital and Medical Center and providers within its system.

“… It felt heartbreaking,” Jones told Rewire. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights…”

Something that Bill 207 does not address at all is any duty of physicians to discuss every option available to a patient. If referring is equated to participating in an objected-to procedure or medication, then one might tacitly assume that providing comprehensive information on that procedure or medication can be denied. Withholding medical information can have serious consequences:

“… a woman was traveling across the Midwest when she developed abdominal pain. She and her husband went to the nearest hospital, where she was diagnosed with a potentially fatal ectopic pregnancy. The doctors recommended immediate surgery to remove the fallopian tube containing the misplaced embryo, a procedure that would reduce by half her future chances of conceiving a child. They failed to mention that a simple injection of Methotrexate could solve the problem, leaving her fertility intact. (In fact, at a secular hospital she found on her smart phone, it subsequently did.) Why the omission? The Catholic hospital where she got diagnosed was subject to the “Ethical and Religious Directives” of the Catholic bishops, which state, “In case of extrauterine pregnancy, no intervention is morally licit which constitutes a direct abortion…'”

In fact, denial of comprehensive information is a recurring issue when medical conscience exemptions are asserted.

Of course, some of these examples focus on the emotional impact, but that doesn’t mean that there aren’t serious physical consequences potentially at stake:

“After about 10 hours, the patient’s temperature soared to 102 or 103 degrees, Ralph recalled in an interview with Rewire in June, a few months after the incident. Ralph and her team gave the patient medication to induce labor. But Ralph could not administer mifepristone, which the American College of Obstetricians and Gynecologists (ACOG) considers part of the most effective drug regimen for such cases. The Catholic hospital didn’t carry the drug, which is commonly used for medication abortions—a failure Ralph believes was religiously motivated and needlessly prolonged her patient’s labor.

“… For more than 24 hours, the patient labored through painful contractions. She bled heavily, requiring at least one blood transfusion. Her lips and face lost their color. Finally, she delivered a fetus that had no hope of survival…”

The full extent of Bill 207’s reach isn’t understood either, until you realize that “medical provider” covers a wide range, as noted in an Edmonton Journal editorial:

“The list is long and includes emergency, primary and critical care paramedics; midwives, chiropractors, podiatrists, psychologists and psychiatrists; lab, respiratory, ultrasound and X-ray technologists; pharmacists, physiotherapists and physical therapists; opticians and optometrists; dieticians and nutritionists; anesthesiologists, surgeons, and social workers; audiologists, dental professionals and speech-language pathologists…”

The inclusion of pharmacists in that list raises the question about access to birth control, an issue that has already surfaced in Alberta and elsewhere in Canada:

“Joan Chand’oiseau of Calgary recently posted a photo on Facebook of a sign on her physician’s office door that read, ‘Please be informed that the physician on duty today will not prescribe the birth control pill…’”

It also raises questions about access to hormone therapy for trans patients, or the possibility of throwing in a bit of public humiliation for good measure:

“‘Sir, we canceled your prescription because we couldn’t figure out why a man would need female hormones,’ said the voice. ‘You’ll have to have your doctor call us to confirm this is correct because it doesn’t make any sense…'”

Indeed, trans health is just as likely to be impacted as reproductive health, and doesn’t even have to be about transition-related medical concerns. Trans people regularly report what they’ve nicknamed ‘Trans Broken Arm Syndrome‘ — that is, the refusal of care for basic health services just because they’re trans. And it does indeed happen in Canada:

“According to the College of Physicians and Surgeons of Saskatchewan’s charge of unprofessional conduct and the penalty presentation, the incident took place on Jan. 5, 2016, when Anderson saw a patient for “reasons related to bronchitis” — something completely unrelated to the patient’s transition to male from female.”According to the documents, the disciplinary hearing committee found it ‘probable’ that Anderson ‘launched into an unsolicited running commentary’ regarding transitioning. Anderson made statements ‘which were insensitive and unrelated to the reasons for which the patient requested your medical services,’ according to the charges against Anderson…”

It should also be asked what conscience protections might do to protect the still-persistent practices of reparative therapy in Alberta (albeit with coded language). But that aside, denial of basic care is something that all LGBTQ+ people have had to worry about, sometimes even with lethal effect in situations that didn’t initially seem to pose an “imminent risk”:

“Refusing to treat patients can be be deadly, as was the case in 1995, when Tyra Hunter, a transgender woman, lost her life after emergency medical technicians refused to assist her at the scene of a car accident. According to the Center for American Progress, had Hunter received care, her chances of surviving were 86 percent — she should have lived…”

Medical assistance in dying is another area in which medical access is an issue, and in this instance, access is even more seriously limited. It is estimated that the aforementioned Covenant Health (and affiliates) oversee up to 90% of the long-term care beds in parts of Alberta, and regardless of whether long-term care patients are healthy enough to be moved, doing so is sometimes necessary just have questions answered, because of facility policies:

“Covenant Health stated in May of 2016 that it has an ‘ethical and moral opposition to medical assistance in dying’ and that the organization’s ‘unequivocal position to not provide or explicitly refer’ must be recognized. Functionally, this means that any assessment of capacity, any answering of technical questions, and the act of assistance in dying itself would require a transfer away from a Covenant facility.

“… The case of Ian Shearer, an 84-year-old Calgary man living in Vancouver with palliative heart and kidney disease and severe chronic pain, brought attention to how transfers can do harm. Shearer was denied a request for medical assistance in dying from St. Paul’s Hospital, a Catholic facility near where he lived and where he’d been admitted for care. On the day he chose to die, his ambulance was delayed three hours and his medications were withheld to allow him to confirm consent. The ordeal, last August, was described by his daughter as ‘unnecessary… excruciating suffering…'”

Obviously, the out-of-province and out-of-country examples won’t exactly mirror what would happen in Alberta, because of circumstantial differences in things like medical coverage, but what this demonstrates is the extent to which individuals might be willing to abuse a conscience protection, and the twists of logic involved. From the firing of doctors for not adhering to an organization’s conscience policies, to the chilling effect on medical care caused by activism from anti-abortion groups against clinics just for hiring doctors who’ve performed abortions elsewhere in the past, to medical residents who openly vowed to give the wrong medications to specific groups of people, to some some truly backwards beliefs about medical interventions…

“Throughout the conference’s diverse and highly academic presentations, one discernible theme emerged, namely, that “brain death” has been invented to harvest viable organs from still-living people. Only when a person’s heart stops beating and their breathing ceases for a determinate amount of time can it be said that death has truly occurred…”

… the politics surrounding medical conscience exemptions raises a broad range of concerns.

It is likely that Alberta’s Bill 207 would not survive a legal challenge. Indeed, the same day that the bill was introduced in the Alberta Legislature, a similar policy was overturned in the U.S. Likewise, a ruling in Ontario last May affirmed patients’ rights to referrals when care is denied.

But getting there could be another long, legally costly process, with very real human collateral damage caused along the way.

Photo: Adobe Stock

(crossposted to rabble.ca)

On conscience-based medical exemptions

The College of Physicians and Surgeons of Ontario is currently reviewing its Human Rights Code policy on conscience-based exemptions for medical professionals, and their effect on access to medical services.

This review was sparked by a number of news reports of doctors in Ontario and Alberta refusing to prescribe birth control because of their religious beliefs. In some of those cases, patients were refused in clinics where there was only one doctor on duty.

Concurrently, south of the border, the United States Supreme Court ruled in favour of a corporation’s right to deny medical insurance to its employees when doing so would violate the owners’ religious beliefs — a case that was specifically about access to contraception. The Hobby Lobby case has been followed by several new attempts to widen the exemption, and calls to extend it to other sectors and in ways that would allow businesses to refuse service to LGBT people.

These events reflect a major shift in the way that conscience rights are being seen and applied in North America.  It is my hope that the experiences of trans* people in Alberta with conscience-based medical exemptions might provide some insights for those considering a conscience policy review in Ontario.

Alberta has had a policy for some time which allows a doctor to refuse to prescribe treatments that violate their religious beliefs in non-emergency situations. However, they are required to state that the refusal is because of their religious beliefs, and to provide a timely referral for patients to someone who will provide care, so that patients still receive service and experience a minimum of undue hardship (although to be fair, having to jump through referral hoops can be considered an undue hardship of itself, especially when one factors in the difficulties in scheduling time off from work and other real life concerns).  Ontario’s policy is similar, though not identical.

Alberta’s policy was created to protect medical professionals from having to participate in any situation that might lead to an abortion.  But in the past year, there has been an upsurge of discussion about the need for a religious or conscience-based exemption in every sector and every practice.  Access to birth control is one of the pivotal issues in play in that discussion, although it is not the only one.

As an advocate for transsexual and transgender people, I’ve needed to assist a great number of people over the years who’ve been denied medical services because they’re trans* under Alberta’s conscience exemption policy.  Sometimes people have even been denied services for things like urinary tract infections, routine checkups and cases of the flu.  To be fair, the conscience exemption is not the only factor: denials are sometimes made by doctors who say they’ve never been trained in trans* health — although this complaint is made not only in regard to trans-specific health concerns, nor does there appear to be a willingness to learn from many of those doing the refusing.

Most often, trans* people who are refused care are also not provided a referral to anyone else.  This exploits the public’s unfamiliarity with this part of the law, and that they’re entitled to a referral.  It is certainly not every medical professional who refuses to assist, but it occurs frequently enough that the trans* community has had to try to keep a list of “trans-friendly” doctors — a list that is constantly plagued by doctors no longer being able to accept new patients, or making changes in their practice or habits.  I’m always happy to add doctors to the list, with the only requirement be that they adhere to the WPATH Standards of Care (which is also the policy of Alberta Health Services).  Two years ago, someone obtained a copy of our records and stormed into the offices of several listed clinics in Calgary, raising a ruckus about doctors’ willingness to treat trans* patients, and this resulted in several requests to be removed from our list.

Although commentators sometimes note theoretical possibilities like a Jehovah’s Witness practitioner denying blood transfusions, I can say from experience that conscience policies already can and do result in people being denied access to the care they need… and are not always given “timely” alternatives.

I am sensitive to a person’s right to opt out of something because their conscience, and not just a religious-based conscience.  However, in practical experience, exemptions tend to be abused, and marginalized people pay the heaviest price.  If there is to be a conscience-based exception to medical care, a province also needs to have a much better way of coordinating timely and accessible care alternatives, and better enforce the responsibility to provide those alternatives.  In Alberta, this is difficult, since there is no centralized means of communicating with medical professionals and provide some forms of training after they’re already in the field, short of making laws — so strengthening things at a policy level proves difficult.

With the recent shift of thinking among the religious right toward making provinces “abortion-free” and denying access to previously uncontroversial things like birth control, this issue will worsen in coming years.  If there is to be a conscience-based exemption to medical care, provinces need to seek a solution to the policy quandaries this creates now.  For example, if a walk-in clinic’s only physician on duty  will not prescribe contraception, then it’s worth investigating what responsibility the clinic should have in providing a doctor who will, and in a manner that suits the patient’s needs, rather than the doctor’s.

Or what responsibility the province is taking upon itself by sanctioning health care exemptions.

(Crossposted to Rabble.ca)

Nova Scotia Extends Health Care Coverage for Reassignment Surgery

After originally saying that it would not fund genital reassignment surgery, the Nova Scotia government has now said that it would extend health care funding coverage for the procedure.

Health Minister Dave Wilson is quoted as saying, “This is the right thing to do.”

I’ve written previously about why GRS is recognized as being medically necessary by medical experts, specialists in trans health, social agencies and human rights organizations.  Here is a snippet:

… There is more. Current legislation asserts that most forms of identification and legal documentation can only be changed to reflect one’s new gender after surgery has been verified. Without GRS, many pre-operative transsexuals experience severe limitations on employment, travel beyond Canada’s border, and treatment in medical, legal and social settings in which verifying ID is necessary. Prior to GRS surgery, transsexuals also face limitations on where they can go (i.e. the spa or gym, or anywhere that involves changing clothes) and difficulties in establishing relationships — as well as being in that “iffy” area where human rights are assumed to be protected, but have not yet been specifically established as such in policies and legislation. In hospitals, prisons and such, they are housed by physical sex rather than their gender identity, creating potentially risky situations, unless the authorities directly involved choose to keep them in isolation instead. And at the end of the day, without GRS surgery, one’s gender is always subject to being challenged or stubbornly unacknowledged by those who don’t realize that a transsexual’s gender identity was not a matter of choice. There is also an extremely high risk of violence faced upon the accidental discovery that one’s genitalia does not match their presentation.  No other supposedly “cosmetic” issue so completely affects a persons rights, citizenship and safety…

This is the fulfillment of several years of work for Nova Scotian trans people.  While details of the program are not yet known, the community had been advocating for comprehensive trans health coverage:

This points to a trans* health care model that includes, but is not exclusively reliant upon, SRS; that is driven by the individual and their particular requirements; that serves all of the trans* community, including those who do and those who do not seek SRS. This is exactly the kind of culturally competent, patient driven, community health care model that both Minister Wilson and his predecessor, the Hon. Maureen MacDonald, have been advocating for Nova Scotians. This is exactly the model that we, as a community, should be asking for.

Nova Scotia also recently added trans people to that province’s human rights legislation.

In a note on Facebook, Kevin Kindred and the Nova Scotia Rainbow Action Project are encouraging people to contact their MLA and send letters of thanks and support.

Most Canadian provinces provide some form of funding for GRS, now (albeit sometimes imperfect) — only New Brunswick and PEI do not.  Attempts to defund GRS have been met with sustained pressure from the public and human rights complaints, with Ontario delisting coverage in 1998 (restoring it ten years later), and Alberta delisting funding in 2009 (restoring it in 2012).

(Crossposted to Rabble.ca)

Intersex Conditions within the Transsexual Brain / Why “Born This Way” Is Not the Point

A bit of point and counterpoint here, to provoke some thought.

I thought this portion of a lecture given by Robert Sapolsky at Stanford University, given in 2010, would be worth posting for folks who found this blog recently, and/or aren’t familiar with some of the medical discoveriess since the late 1990s.  It gives a very quick overview of some of the developments that have been happening in studying transsexualism.

This comes via Transadvocate, and h/t Zoe Brain.

As a counterpoint, I was going to link to an article I wrote called Why “Born This Way” Is Not the Point, only to discover I’ve apparently never archived it on this blog (either that, or I’ve written so much that I’ve lost the ability to keep track of it all).  So here it is.

Why “Born This Way” Is Not the Point

In her anthem coming soon to an ear near you, Lady Gaga asserts that whether “black, white, beige, chola descent” or “gay, straight or bi / lesbian, transgendered life,” we should all be proud, because we’re just “Born This Way.”  The song was unquestionably well-intended, but there is a danger in basing the acceptance and validity on whether or not characteristics can be attributed to an inborn trait.

“Born This Way” is the inevitable product of an ongoing debate where legitimacy hinges on whether or not something is biological and intrinsic, or perceived to be a life choice.  For those of us who are trans or queer, the far right version of the birth versus choice narrative claims that we are trans, lesbian or gay purely by choice. Underscoring this is the implication that if something is based on choice, then it is not something the right needs to accept or respect.  From the perspective of someone who is part of both the trans and larger lesbian / gay / bisexual / trans (LGBT) community, I understand when we react to this debate to point out that we never chose to be as we are, and that it’s not something we can switch on or off like a light.  But doing so misses the point entirely.

There is certainly reasonable precedent to believe that biology is a factor in shaping LGBT people.  In the case of transsexuals, a growing volume of science since the mid 1990s has demonstrated frequent and repeatable higher-than-typical occurrences between some genetic characteristics and transsexuality.  Brain structure studies have yielded results in which transsexuals’ brains far more often resembled those of their identified gender than their birth sex, even though there is still wide-ranging debate on how much difference that really causes between men and women.  And research into phenomena like phantom limb syndrome has uncovered the likelihood of the brain having a “body map,” which has been proposed as an explanation as to why transsexuals strongly believe that their birthed sexual characteristics aren’t what they’re supposed to be.

Yet something that bothers me (and isn’t mentioned much in the quest for biological legitimacy) is that clear proof of a biological origin would not only fail to convince those who hate LGBT people, it is also not the holy grail it’s made out to be.

There is ongoing debate about how much of human behaviour stems from biology, how much from conditioning and socialized expectations, and how much from choice.  It’s probably not a good idea to dismiss any of the three.  Although they are vastly different from being LGBT, Bipolar disorder and some forms of autism have been demonstrated to have some form of biological causation or linkage, so there are certainly precedents.  So we play the opposite response: “it’s genetic.”  Well, maybe it is, at least in part, but neither chosen lifestyles nor biologically-driven identities of themselves validate or disqualify value in a human being.  In the long run, we might not exactly be comfortable with the implication of imparting all things biologically-connected with legitimacy.  Imagine a finding in which pedophilia is shown have some genetic trigger.  Certainly, many predators describe a compulsion they feel is intrinsic and beyond their control, so it’s not unthinkable that there could be a biological component.  But it would be repulsive to excuse the molestation of children for this sort of reason.  And at that point, consistency fails.

So biological causation only proves that we exist.  We cannot depend on it for rights or to change hearts and minds.  We cannot rely on it to find pride in our lives.  It’s fascinating, marginally validating, but it does not provide the standard against which we measure ourselves as humans.  Biological predestination is a poor measure of who is entitled to human rights or whether or not someone has a legitimate right to be.  We recognize that people deserve respect, freedom, access to employment and services, and to be treated as equals regardless of any disability, poverty, class, body image, level of education, faith and several other factors that are not inherently predetermined.  The “choice invalidation” argument seeks to undermine far more than the acceptance of LGBT people.  Discrimination does not occur purely because of the colour of someone’s skin — rather, colour is one of many indicators that are used to trigger presumptions about an individual’s culture, lifestyle, behaviours and tendencies.  You hear this excuse all the time: “I have nothing against them, but you know what they’re like….”  Prejudiced people are blind to their prejudice because they’ve seduced themselves into believing that what they’re reacting to are associated choices and not really the trait itself, when they’re acting on the unspoken and often inaccurate smorgasbord of inventions that go with it.  When we insist on biological validation, we are playing along with an ideology that makes soft excuses for bigotry, rather than confronting the impulse to discriminate.

And for that matter, how much of the “born this way” argument boils down to people feeling like they have to make excuses and seek societal forgiveness for existing, rather than pointing the finger back at bigotry?

The concept of human rights, of course, was supposed to address the extent to which hatred between diverse human communities manifested.  Human rights legislation was a response to the dramatic and horrific manifestation of hatred during the mass genocide that occurred in Nazi Germany — but it also recognized that mass extermination is not a new phenomenon, and that modern society cannot be fooled into believing that it would never occur again.  The principle is that all people should be treated as equals, but we know from experience that if we leave it up to everyone’s discretion, enormous imbalances happen.  Even with human rights legislation, there are glaringly different ways that privileged and non-privileged classes are treated.  So human rights legislation is structured in a way that identifies various classes that should not be used as bases to include or exclude — to accept or to hate — people.  The classes are, of themselves, neutral (for example, “race” covers white people as much as anyone else), so contrary to another modern myth, there are no “special rights.”  It becomes the role of the judiciary to balance the rights of the minority with the rights of the majority.  In an ideal world, of course, we would all realize that all are created equal, but in practical reality, reminders have to be codified into law, because there is always disagreement about who should be treated fairly and what the limit to fairness should be.  At the furthest extreme, without rights legislation requiring the legal system to take occurrences seriously, it becomes common for people to excuse violence or murder of minorities as being somehow justified or inconsequential, thereby devaluing the lives of the victims.

At some point, we need to realize that risk-conscious, responsible, respectful and genuinely consensual behaviour need to be the standards by which we measure people — by their actions, rather than any assumptions associated with any traits… even those that are not necessarily intrinsic, genetically-determined ones.

About that “GID is removed from the DSM” thing…

Oh god, please make it stop.

Yesterday morning, I woke up to a rash of headlines proclaiming that transexuality was no longer considered “disordered” by the American Psychiatric Association. This morning, it grew worse, with a rash of panicked emails from people who were wondering if their medical access would be jeopardized, after some LGBT and even mainstream news sites and blogs reported this as meaning that “Gender Identity Disorder” (GID) will no longer be considered in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), or had been “removed” from the DSM altogether.  No, it hasn’t.  That’s not true at all.

I hate to be a wet blanket, but the change that’s being heralded is mostly just in name, and “Gender Dysphoria” remains in the DSM — and in the “Sexual and Gender Identity Disorders” category (although that name may change too), if I recall correctly, of a manual that governs mental health.  The parallel being drawn to when homosexuality was removed from the DSM wildly overstates this change.

And because it has not been completely removed (something I’ve previously cautioned about the risk of doing too hastily, regarding both the DSM and ICD volumes), peoples’ medical processes are not affected in any way.  The panic I’ve heard from some people wondering if their medical treatment will be hindered is unfounded.

There is something to see here, though:

There is a positive in this, though, in that people are finally paying attention to the problems associated with another DSM category: Transvestic Disorder (formerly Transvestic Fetish). When the alarm was raised about Drs. Ray Blanchard and Ken Zucker having administrative roles in the DSM revision, that protest lost some steam when the APA announced that Zucker would be in an oversight position rather than hands-on, and Blanchard would be working on a separate category not related to GID (Paraphilias). Some of our allies decided we were making much ado about nothing.  Now, people are perhaps realizing the problem with that arrangement, in that it gave Blanchard full license to develop Transvestic Disorder (TD / TF).

A few trans advocates (including Kelley Winters, Julia Serano, and myself) have cautioned about the problems with regard to TD / TF and what could happen if that diagnosis is expanded in scope while GID diminishes or is eliminated.  Well, indications thus far are that Transvestic Disorder has certainly been expanded, and evolved to encompass Ray Blanchard’s theory of “autogynephilia” as a subcategory (plus the addition of “autoandrophilia,” to make it an equal-opportunity pathology).  All that anyone really needs to do to technically qualify for this diagnosis, as Serano notes, is to be “sexually active while wearing clothing incongruent with their birth-assigned sex.”

This diagnosis sexualizes and invalidates, and frankly, it has become a wide, sweeping pathology encompassing a significant amount of non-harmful behaviour.

Backgrounder: The Little Case Study That Autogynephilia Forgot

(Crossposted to The Bilerico Project)

Trans Depathologization: the spark of change.

I watch a lot of news stories unfold, reading left-wing, centrist and right-wing media alike.  In the course of a news story, issues ignite, blaze hotly and then smoulder into memory.  After awhile, one develops some sense of when a campaign will spread like a prairie fire or when it will extinguish itself.  The quest to depathologize transsexual and transgender people (or more likely just transsexed individuals) has smouldered for several years, but recently, something is happening.  It reminds me of looking at a match at the moment of ignition.  Flame shoots out in every direction, then chaos, and then it wraps itself up in whatever movement of air there is… or is blown out by it.  This effort, this time, I think will ignite into a blaze — with the only unknown being whether or not the World Health Organization will listen and respond.

There is a rejuvenated movement to have trans diagnoses removed from mental health classification, under the common belief that if transsexuality were no longer considered a mental illness (in the way that happened with homosexuality was in 1973), that it will lead to the level of acceptance that gay men and lesbians have attained.

This as something that has to happen.  But if not done with care and consideration, it could become more chaotic than it needed to be, and burn more people than necessary in the process.  Here’s why, and what can minimize this.

First, the Background.

Jenna Talackova, the beauty queen who fought for the right to compete in the Miss Universe Canada pageant regardless of her trans history, wants you to know that she’s not sick.  In a petition at change.org, she writes: “… the World Health Organization (WHO) insists that I, and millions of other trans people are sick. The WHO actually considers transsexualism to be a mental disorder.”

To that end, she is petitioning the World Health Organization to stop considering transsexual people to be mentally ill, as the WHO revises the International Classification of Diseases (ICD 11).  The ICD includes transsexuality as “Gender Identity Disorder” (GID).  The American Psychiatric Association does the same in their similar volume, the Diagnostic & Statistical Manual, although the petition is addressed to the WHO only.  The DSM is the volume used in the US, while the ICD is the reference used in most nations outside North America.  The APA has proposed to change the name to “Gender Dysphoria” for the upcoming DSM-V, which some have trumpeted as being a change from mental health classification… but it really isn’t.  In fact, the proposed revision to the DSM has gone backwards, by annexing intersexed conditions into the definition of GID.

Jenna’s petition is part of a larger project through Change.org, with a single petition split into six campaigns.  The U.S. version of the letter is written by blogger Maxwell Zachs, a cast member of  the UK reality TV show, “My Transsexual Summer.”  There are others for Spain (with Carla Antonelli), Italy (with Vladimir Luxuria), Germany (Kim Schicklang), and France (Rochelle Gregorie).  49,000 people have signed on since the petition launched in early October.

The genesis for this project appears to come from Stop Trans Pathologization 2012, even though petition links don’t appear on that group’s website, and it may be only loosely affiliated. STP2012 recently marked its International Day of Action on October 20th, for which this campaign was apparently conceived.

The Need.

There is no doubt that there is a need for change, and that sooner would be better than later.  Some of this is optics: as long as the public thinks of transsexuality as mental illness, it provides seeming justification for creating roadblocks, denying employment, denying housing, blocking access to services, blocking access to health care funding, and more.  Throw a rock in the air, and you’re sure to hit any of thousands of right-wing commentaries that use mental health classification as reason to oppose even basic human rights inclusion for trans people.

Depathologization is the benchmark “marriage” issue of trans people.  Medical classification actually affects more than just transsexed people, although nobody seems to be questioning the categorizations that affect non-transsexed trans people.  Which is why there is some temptation to see this as an effort that benefits mostly those in trans communities who are privileged and not affected by some of the more urgent forms of disenfranchisement.  Especially when over 40 years later, gay men and lesbians are still routinely accused of mental illness (although that argument has no value, other than to challenge peoples’ expectations), and even still off-and-on classified that way in some areas.

But it’s not just optics.  Pathologizing diagnoses are sometimes used to adversely affect custody of children, employment, access to support services, participation in the military (most notably in the U.S., where the end of Don’t Ask Don’t Tell didn’t help trans servicemembers) and more.  There are many tangible instances where this classification becomes a roadblock.

The current diagnosis also sets itself up to be a pre-existing condition, thus allowing it to be exempted from coverage.  In this case, any trans-specific diagnosis would be a problem, and the problem lies with the overall concept of “pre-existing condition” exemptions.

Diagnosis is not treamtent.

The current diagnosis also directs people to a horribly gatekeepered medical system, although it should be remembered that the standards of care are not directed by the DSM or ICD, and removing the classification may not necessarily change this aspect… other than perhaps changing who the individual gatekeepers are.  Gatekeeperism has always been a double-edged sword.  When the person in question is a genuine ally, this has proven to be a reliable route through transition.  But unfortunately, that has often not been the case.  And even when the gatekeeper is an ally, the waiting list to see them is itself an unusual barrier, and the pathway often comes with an expectation of a person fitting a narrow cookie-cutter template.

As it is, though, there are significant challenges to finding medical professionals who are: willing to take on trans patients; not doing so for an opportunity to dispense aversion or reparative therapies; willing to treat according to current WPATH or harm-reductive standards of care; and preferably also experienced in trans health issues.  What we have isn’t working.  But without something to point to the medical process and to demonstrate medical necessity (which a diagnosis does), the net result for trans people could be significantly worse.

But it needs to be remembered that diagnosis is not treatment.  While the two are connected, and affect each other, addressing a diagnosis does not necessarily change the existing treatment processes, other than to sometimes throw them into chaos or abandon them.

Be Careful What You Ask For…

Unlike when homosexuality was declassified from mental health arenas, transsexed people do have very specific medical needs (such as genital reassignment surgery, mastectomies and hysterectomies for trans men, tracheal shave, facial hair removal and breast augmentation for trans women).  And if depathologization isn’t addressed with the greatest of care, the result on access to trans health care could be disastrous.

In April 2008, I wrote an article entitled Destigmatization versus Coverage and Access: The Medical Model of Transsexuality.  That article has been picked up by a number of sources and even a couple academic texts, and cited often — usually as a “No” vote on the issue of depathologization (which frustratingly mischaracterizes what I wrote).  In it, I wrote about the quandary presented by the current diagnosis, and argued that declassifying the diagnosis of GID is inevitable — but before it can be done, an alternate medical model that does not depend on a mental health diagnosis needs to be developed and established, so that existing medical access for people in transition would not be compromised or lost.  A bit of that article is out of date, other aspects reflect some misconceptions of my own when writing, which saw the diagnosis and treatment as more interwoven than they actually are.  The ICD and DSM classifications merely classify, they do not recommend treatment, and that does provide more optimism than reflected in that article.  A diagnosis justifies seeking medical care, though, so they’re not completely decoupled.

When I wrote that article, it was in hopes that someday soon, I’d need to follow it up with happy news of some new development, a brilliant new direction being explored, and a new diagnosis and medical model being imagined and refined.   Instead, nothing has really changed.

The Risk.

Here are some things that are risked in removing classification:

1. Funding.  In most public and private health insurance structures, a medical code is required to justify the paying out of money for surgical and non-surgical health procedures and services.  So public and private health funding of sex reassignment surgery (GRS/SRS) are vulnerable.  Insurers see them as “cosmetic” procedures, and switching to an elective medical model will only reinforce that perception.  Mastectomies and hysterectomies for trans men might also be affected in this way (unless an alternate justification is given), and conceivably also counseling, or visits to a family doctor for HRT prescriptions and monitoring (depending on billing requirements and local regulations).  And then there’s the HRT itself.  Not all of these are funded in all areas, and in fact, some regions go to great lengths to deny funding for any or all of these things.  But some do, and they could be compromised if GID / GD is simply declassified, with no contingency plan.  Moreover, delisting would significantly hamper the potential to gain funding from insurers that don’t currently cover trans health.
2. Access.  Simply put, if there’s no diagnosis, a doctor doesn’t have any obligation to care.  If there is a medical classification in some form, there is an obligation to provide care, or at least not stand in the way of it.  This doesn’t always work this way, but the existing situation provides us some recourse when access issues occur.  Further, many surgeons and doctors may not be willing to take on trans patients under a personal elective system, because of fears that we’d change our minds and sue.  The existing 1-to-indefinite year of therapy process has provided a comfortable barrier against legal liability.  How many medical professionals would simply walk away rather than accept that new risk to help trans people — especially with any obligation to treat removed from the equation?
3. Identification correction and citizenship.  Given that many regions also require a change of physical sex in order to change major identity documents, financial and access barriers to trans-related procedures also extends the time before legal and social enfranchisement is attained.  It shouldn’t be that way (and has been fixed in a couple fortunate jurisdictions), but it is.
4. Counseling.  While it’s a problem that transition is dependent on therapists, there’s also some need for caution about taking psychiatry entirely out of the equation, at least for those who want it.  Transition does bring with it some emotional upheavals, particularly related to associated stigmas (which won’t simply be gone when transsexuality is no longer considered mental illness) and challenges (unaccepting families, depression from things like job loss, etc).
5. As twisted as it has been, the existence of a medical classification has provided a form of validation, even if the specific application also invalidates.  It has forced people to acknowledge that we exist.  The problem is that validation has focused on what’s in our heads rather than on what we’re actually bringing into alignment, which is our body.  But regardless of the mistaken focus, this validation has helped to push for legal support.  Just as easy as it is to find right-wingers pointing to the mental health classification as a reason to disparage, you can also throw a rock and randomly hit a reference used to justify and defend.  From a statement made by 20 local and regional NGOs operating in Malaysia, responding to a ruling upholding a law making the wearing of clothes which are considered incongruent with one’s birth sex punishable with a fine of up to RM1,000 and / or up to a year in jail:

In the latest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) the American Psychiatric Association (APA) replaced the diagnostic term “Gender Identity Disorder” with the term “Gender Dysphoria”, “a marked incongruence between one’s experienced/expressed gender and assigned gender”.

The APA too, in a statement urged the repeal of laws and policies that discriminate against transgender and gender variant people.

This is probably a bad example, because the four women who challenged this law lost their case.  They were met with a court ruling that cited Islamic texts and ordered that “religious authorities give counseling to the four and that they act prudently during enforcement.”  Having a diagnosis to cite does not always help.  But sometimes it does.  And when it does, it can mean everything — even a person’s freedom, or their life.

Having the standards of care carry over into physical health treatment in a way that would avert these risks is a greater challenge than many believe.  In the case of the DSM, that volume only has province over mental health issues, so its editors can only declassify.  But the ICD, which is the subject of the petition, does govern both physical and mental health classifications.  Its editors at the WHO can bring about a reclassification, and in fact are best positioned to do so.  But…

Is it congenital?  The challenges to reclassification.

Before a reclassification outside mental health can occur though, a cause needs to be ascertained, and diagnosable criteria defined. Is transsexuality congenital?  Would classification as “Congenital malformations, deformations and chromosomal abnormalities” (Q50-Q56) be just as stigmatizing and warrant yet another future change?  Some intersex groups are fighting against just such a classification, or at least the language used.

Recategorization is not yet feasible, although there have been many intriguing research avenues found in biological sciences which call for more study.  Convincing the medical profession to move a diagnosis when they believe that the current model is workable in their eyes (even if not perfect) is difficult, especially if the alternatives are not yet conclusively proven or causes defined tangibly.

The Informed Consent Model of Care.

The only new development in adult trans health since 2008 is that more people are using what they prefer to call an “informed consent” model of care.  Campus Progress discussed this earlier this year:

Clients at many of these clinics [PDF] can acquire a prescription for hormones after basic laboratory tests, a consultation about hormonal effects, and signing a waiver stating that they know the risks of treatment.

“When we’re working with clients as therapists, the goal is to help people self-realize. We want to allow space for that when it comes to people realizing themselves in the context of their gender,” Talcott Broadhead, a licensed social worker in Olympia, Wash., told Campus Progress.

The informed consent pathway is not yet available in most areas — mostly just a few major population centres in the U.S. — and it’s accepted as a given that funding is entirely the individual’s responsibility.  It also doesn’t state here whether this process facilitates surgical access, and if that means the provision of doctors’ letters to surgeons (in which case, informed consent becomes not much different from a harm reduction model).

If you live in an area where funding isn’t available anyway and is heavily gatekeepered, the informed consent path is 100% better. But it’s also a model that favours the privileged and lucky.  Informed consent remains an elective process, without the use of a medical classification at all, and treats transition as entirely cosmetic, not as medically necessary, even if individual doctors involved realize otherwise.  And since billing is often tied to categorization, I’m not sure how that would work.  In any event, though, the voluntary nature has a tendency to undermine the necessity and validation needed for funding and widely-available access.

WPATH has revised its standards of care to be compatible with both informed consent and harm reduction models.

The harm reduction model.

What many in the medical field have been turning to is a harm reduction model, reducing the stigma as much as possible, while utilizing its strengths to make it available everywhere.  The results vary considerably by region.

The change made from “Gender Identity Disorder” to “Gender Dysphoria,” for example, is made to try to reduce the harm of the mental health stigma.

And then there’s “Transvestic Fetish”

If GID were listed tomorrow, there would still be people who seek counseling to deal with their sense of feeling out of place, and believing that changing their mind is easier than changing the body.  There would also still be people coerced or forced into treatment, especially youth, who are often not given any personal agency of their own.  And it would take time for medical professionals to become aware of this change, let alone warm to it.

One of the issues mentioned in Destigmatization… regarding the DSM volume, was that if GID is dropped from medical classification while Transvestic Fetish (TF) remains, this opens up the possibility that for anyone who crosses paths with the mental health system (and possibly the health system overall), TF could become a diagnosis of choice.  TF is also found in the ICD, as Fetishistic Transvestitism, F65.1.  This classification puts an emphasis on the clothes one wears, and implies a sexual motivation (which are besides the point and inaccurate, respectively), but it doesn’t take a lot of imagination to see how those who are adverse to transitioning people would take advantage of the existence of a TF-style classification and its exclusive status… and weaponize it.

The intent of the latest petitions may be to depathologize, but the result could very easily be a far more damaging pathology.

The way we think about mental health.

The discussion actually says a lot about the way we think about mental health, and the idea that “mental illness” is anathema. The movement to depathologize is based on a shallow understanding of what a diagnosis means, let alone a mental health one.  The assumption, of course, is that a mental health condition either automatically means insanity or else is a figment of a person’s imagination.  The stigma trans people face is more rooted in the public belief about what constitutes “normal” than anything that’s actually in the diagnosis itself, and that societal obsession with normativity won’t change just by reclassifying or declassifying anything.

In a way, the underlying motive is an injustice to the many people who are diagnosed with depression, autism, bipolar or social anxiety conditions, addictions, ADD / ADHD and more, some of whom travel in trans communities as well.  And it can easily translate to horizontal violence, if people choose to ignore this fact.

The spark of change.

There’s probably a reason that this latest movement reminds me of a match catching fire.  There is incredible potential there, but without the certainty yet of whether that power will warm or consume.  It’s all in how we use it.

The problem is that change essentially never comes easy.  There appears to always be some turmoil, at which point, society has to adjust, and figure out how to deal with it.  The question, then, is this: is society at a place where it’s ready to do so?  Are we at a place yet where the benefits outweigh the price that will be paid?  And have we adequately thought about ways to minimize the harm between points A and B?

I’m not satisfied that this is the case, especially when one looks at the question globally.  In some parts of the world, even what we have now is a hard sell.

And yet, it’s igniting now.  Now is the time for change, for many of us — perhaps it’s even long overdue.  Given that cautions in 2008 have gone unheeded, blowing out the flame is not the right thing to do, either.  So instead, I ask that people be aware.  Handle that flame with care.

A Solution.

Problems are easy to point out.  Solutions, usually not so much.  There is a possible solution, here, albeit one that doesn’t neatly solve everything.

Most of the risks outlined above hinge upon the existence of a medical diagnosis.  There is an apparent need for one, but that diagnosis does not have to be a mental health diagnosis.

If the petition were to focus on asking the World Health Organization to actively and urgently investigate the development of an alternate diagnosis in a way that would make transition not dependent on a mental health diagnosis — and which would involve some level of community consultation (probably the harder-sell request of the two) — well, this would be absolutely worth doing.

This solution doesn’t address the point about the way we think about mental health.  That would take a changing of hearts and minds, starting with our own.  But I’m not optimistic that that will happen in any near future.  Even just getting people to think about the political, medical, financial and social realities outside of Theirtown, USA (or Canada) is a bit of a stretch, at times.

But it is a solution.  And it could be do-able, in a way that maintains the spirit of the original petition, which says:

“This doesn’t mean that trans people should be excluded from the health system: pregnant women are not sick, but they have medical protocols and assistance. The same should happen with trans people.”

Pregnancy is covered at length in Chapter XV of the ICD, in classifications O00–O99: “Pregnancy, childbirth and the puerperium.”  Just in case anyone was wondering.

(Crossposted to The Bilerico Project and Dented Blue Mercedes)

uh-oh.

(crossposted in several places, and people are welcome to forward this on freely to others in the transgender and GLBT communities, as I see this as being very serious — Mercedes)

A short time ago, I’d discussed the movement to have “Gender Identity Disorder” (GID, a.k.a. “Gender Dysphoria”) removed from the DSM-IV or reclassified, and how we needed to work to ensure that any such change was an improvement on the existing model, rather than a scrapping or savaging of it.

Lynn Conway reports that on May 1st, 2008, the American Psychiatric Association named its work group members appointed to revise the Manual for Diagnosis of Mental Disorders in preparation for the DSM-V.  Such a revision would include the entry for GID.

On the Task Force, named as Sexual and Gender Identity Disorders Chair, we find Dr. Kenneth Zucker, from Toronto’s infamous Centre for Addictions and Mental Health (CAMH, formerly the Clarke Institute).  Dr. Zucker is infamous for utilizing reparative (i.e. “ex-gay”) therapy to “cure” gender-variant children.  Named to his work group, we find Zucker’s mentor, Dr. Ray Blanchard, Head of Clinical Sexology Services at CAMH and creator of the theory of autogynephilia, categorized as a paraphilia and defined as “a man’s paraphilic tendency to be sexually aroused by the thought or image of himself as a woman.”