The Wrong Message

Though same-sex marriage has been legal for nearly five years and LGBTQ rights have become part of the mainstream public discourse in ways that would have been unimaginable even a decade ago, discrimination against sexual minorities is hardly a thing of the past. In most states, you can still lose your job or get kicked out of your apartment because of who you are or who you love. A patchwork of state laws and conflicting legal rulings leave too many people at risk, and while there are openly gay governors, members of Congress, and big-city mayors, there is still no federal nondiscrimination law protecting all LGBTQ Americans.

Last month, when congressional Democrats introduced The Equality Act, legislation that would add sexual orientation and gender identity to protected status under the Civil Rights Act of 1964, the U.S. Conference of Catholic Bishops quickly opposed the measure. In a letter to Congress, the chairmen of three USCCB committees denounced the proposed bill, claiming that “rather than offering meaningful protections for individuals,” it “would impose sweeping regulations to the detriment of society as a whole.” The letter was signed by Bishop Frank Dewane of Venice, Florida, chairman of the Committee on Domestic Justice and Human Development; Archbishop Joseph Kurtz of Louisville, KY, chairman of the Committee for Religious Liberty; and Bishop James Conley of Lincoln, Nebraska, chairman of the Subcommittee for the Promotion and Defense of Marriage. They argued that the act will regulate “thought, belief, and speech” and require “uniform assent to new beliefs about human dignity that are contrary to those held by many—believers of diverse faiths and nonbelievers alike.” They also warned that it “would force a multitude of charitable services to either violate their principles or shut down,” citing foster care and adoption agencies that “would be expected to place children with same-sex partners, regardless of some birth mothers’ wishes and children’s best interests.”

The bishops’ letter fails to adequately take into account the real and specific ways in which LGBTQ people face unjust discrimination. One bishop, who requested anonymity to speak candidly, expressed concern that opposition to the Equality Act is framed in dire terms that might not reflect a more nuanced reality. “I worry this is a narrow interpretation of worst-case scenarios, and a whole case is built around it,” the bishop said, noting how a similar approach guided the USCCB’s opposition to the Affordable Care Act. More broadly, he said, church leaders need to think more about the lived reality of LGBTQ people, especially those who are transgender: “We need to take seriously their experiences. To say that gender dysphoria is all about an ideology is very dismissive.”

The reality is that at least twenty-two transgender people have been killed in the United States since the beginning of 2018, according to the Human Rights Campaign. Eighty-two percent of these victims were women of color, most were under the age of thirty-five, and more than half lived in the South, a region where no state has passed LGBTQ protections. The National Center for Transgender Equality and the National Gay and Lesbian Task Force interviewed more than six thousand transgender and gender nonconforming people from every state and found that 41 percent reported suicide attempts (compared to 1.6 percent of the general population). High percentages reported bullying in school, harassment on the job, and physical and sexual assault.

Michael Vazquez, a twenty-eight-year-old gay Catholic in Durham, North Carolina, says the bishops’ rejection of the Equality Act sends a message of exclusion: “They say ‘we don’t support discrimination,’ but the rest of the letter is a lengthy objection, and that really undermines any way in which the Catholic faithful might understand a commitment from the church’s leadership toward protecting LGBTQ folks from discrimination and violence.” Vazquez describes coming out to his traditional Catholic family as a “messy experience,” and his relationship with his family remains strained. He started Brave Commons, an organization for LGBTQ students at Christian colleges that now works with about twenty schools, and last year, he founded Vine & Fig, an online community for LGBTQ Catholic millennials. “I would love to see the bishops uphold our church teaching about the human dignity of every person,” Vazquez says. “So instead of writing a letter condemning the Equality Act, they could have spoken in very specific and robust language about how important it is to protect gay and queer folks.”

Douglas Laycock, a University of Virginia professor and scholar of religious-liberty law, thinks we have reached a stalemate in trying to strike a balance between respect for religious freedom and LGBTQ equality. Religious institutions that see a threat to their conscience rights and LGBTQ advocacy groups have become “deeply intolerant and have no respect for the rights of the other side,” Laycock says. “Both sides are dug in.”

The Catholic Church and other religious institutions that hold traditional beliefs about marriage and sexuality are facing what Laycock calls “unprecedented demands” to provide birth control and other services. “There is no precedent in American history for asking our largest religious groups to violate central tenets of their faith,” Laycock says. At the same time, he notes, religious individuals and faith-based institutions have often overreached in making religious-liberty claims. A reasonable accommodation of religious-conscience concerns in a diverse public square, Laycock argues, is different from an absolutist understanding of religious liberty that has no limits. He says that so-called First Amendment Defense Acts pushed by conservative lawmakers go too far in “creating a total carve out” for religious exemptions, even when the government fails to articulate a compelling interest. He sees the opposite problem with the Equality Act: a lack of any accommodations for religious groups. “The demand for religious exemptions is proper, and there are none in this bill,” he says.

But Lisa Fullam, a professor of moral theology in the Jesuit School of Theology at Santa Clara University, argues those religious exemptions are at the heart of the problem. “The bishops seem to want to carve out space for Catholic institutions to practice exactly the kind of discrimination the Catechism forbids, and use shaky justifications to that end,” Fullam says. “It would seem obvious that the bishops would support this legislation since the Catechism explicitly rejects any form of ‘unjust discrimination’ against LGBT people.”

As for the USCCB’s concern that the Equality Act would potentially force Catholic doctors to perform gender-reassignment surgery for transgender patients, several Catholic-health-care experts see that as unlikely.

“We would assess the risk of being compelled to do these surgeries as very low,” says Fr. Charles Bouchard, the senior director in theology and ethics at the Catholic Health Association. Bouchard emphasized the need to receive and welcome transgender patients with respect and dignity. “A lot of transgender people avoid health care because they have had bad experiences, and we don’t want that to happen at Catholic hospitals,” Bouchard says. Some Catholic healthcare systems have learned from hospitals that have expertise working with transgender patients, and staff have received training in treating these patients with sensitivity. But there is still a steep learning curve, according to Bouchard, given that the U.S. Conference of Catholic Bishops and some Vatican officials have only fairly recently engaged these issues in a specific way. “Our hospitals call us all the time asking about what we can do and what we can’t do,” he said. Unlike church teaching on homosexuality, there is no developed church teaching when it comes to transgender issues. “As Catholics, the deeper question for us is an anthropological one,” Bouchard acknowledged. “What is the human person and what determines gender and sex? This is where a lot of disagreement in society comes in.” Misinformation and fear can often distort the conversation. “One of the challenges is most bishops encounter transgender issues through the so-called bathroom wars,” he says. “That is not really our issue in Catholic health care. We are focused on people in clinical situations. But many bishops got spooked about the bathroom debate.”

Carol Bayley served as the ethicist at Mercy Health Services in Michigan, where she led clinical-ethics programs in seventeen acute-care hospitals; before she retired last year, she was the vice president for ethics-and-justice education at Dignity Health, a multi-hospital system in several states. Bayley calls it an “unfounded fear” that Catholic hospitals will be strong-armed into performing gender-transition surgery, in large part because it’s a complicated surgery done in specialized medical centers. Even so, the ethical and moral reasoning Catholic hospitals might apply in cases like these is important to think about, and not just hypothetically. “There are layers when it comes to the application of Catholic moral reasoning, and the message Catholic hospitals send to the world is a part of that,” Bayley says. Procedures known as “bottom surgery” consist of refashioning the urinary and reproductive structures into those of the new sex. Catholics hospitals do not perform this surgery because it renders the person incapable of using their sexual organs to procreate, which qualifies as sterilization, a procedure that violates church teaching. But “top surgery”—a mastectomy for female-to-male transpersons or breast augmentation for male to female transpersons—is permissible, because of the largely cosmetic nature of that procedure. Catholic hospitals also provide breast augmentation surgery to heterosexual women for aesthetic reasons. Yet even where bottom surgery is concerned, Bayley argues, a long-used tool of moral reasoning—the principle of double effect—could help provide a framework for discerning whether a negative outcome is morally permissible when it is foreseen but not intended. In the case of bottom surgery, the unintended outcome—sterilization—is not the reason people seek out the procedure, she notes; in fact, many transgender people don’t want to lose the reproductive function.

A theologian who knows her way around the moral tradition could potentially find an argument for bottom surgery in some cases. “But,” Bayley says, “that also brings another discussion about whether a Catholic hospital should or could do this, and that would have to take into account the teaching authority of the bishops.” Most importantly, church leaders have a lot to learn about transgender people. “In the best of the church’s tradition, when we want to do something for poor people, we go out and listen to them,” Bayley says. “You can’t just do this in your head. You have to talk to real people. Regardless of whether we ever lift a scalpel to help a transperson in a physiological way, Catholic hospitals need to welcome them. As a church we have a set of values to do this. If bishops could use their teaching authority and remind Catholic hospitals of their call to receive everyone and welcome the stranger that would be very significant.”