Healthcare providers are faced with new liability issues as Transgender rights continue to expand. Lawsuits involving healthcare providers and transgender patients are popping up all over the country. Besides the normal patient/provider liability issues, these new issues, among others,  stem from discrimination, lack of knowledge surrounding proper treatment, and professional liability issues as medical providers.

In San Diego, a grieving mother is suing Rady’s Children’s Hospital after her son’s suicide, claiming medical personnel discriminated against her transgender son and violated federal and state gender discrimination laws.  After an incident involving transphobic harassment, Kyler Prescott, a 14-year old boy suffering from gender dysphoria, inflicted serious injuries upon himself.  It was at that point Kyler’s mother, Katherine Prescott admitted him to Rady for treatment.

While being treated at Rady, Prescott claims hospital staff repeatedly referred to her son as a girl, despite being aware that he was a transgender boy. Continual requests to refer to Kyler as a boy did nothing and, in her complaint, Prescott says one Rady employee even said to Kyler, “Honey, I would call you ‘he,’ but you’re such a pretty girl.”

The young boy was dealing with a high level of distress and anxiety over his gender dysphoria issues. Prescott alleges this only further traumatized Kyler and caused him to go “into a spiral,” effectively making his state much worse than when he first arrived for treatment.

She can back up her claims, too. If you’re not familiar with the term, gender dysphoria is a strong feeling that your body doesn’t reflect your true gender.  According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, if left untreated, gender dysphoria can lead to debilitating depression, diminishment of self-esteem, serious incidents of self-harm, and suicide.

Despite the recognition of Kyler’s serious mental health issues, including his suicidal ideation, Rady’s psychiatrist determined Kyler should be discharged early from his 72-hour stay due to the discrimination he was receiving. About five-weeks later, after describing his stay at Rady as “horrible,” Kyler committed suicide.

Is This a Case of Sex Discrimination?

The issue seems to stem from the provider’s inability to properly treat a transgender patient suffering from gender dysphoria rather than intended discrimination. It further boils down to the fact that Rady advertised and held themselves out as experts in treating transgender and gender nonconforming children and adolescents through its Gender Management Clinic.

Nonetheless, the issue of an actual intention to discriminate doesn’t matter here. Title IX and Title VII have been interpreted in federal courts to prohibit discrimination of transgender people and the regulations of the Affordable Care Act (ACA) specifically mandate providers covered under the ACA must “treat individuals consistent with their gender identity…” Further, the ACA defines discrimination as including a refusal to use names and pronouns correctly.  It doesn’t get much clearer than that.

So, yes, Prescott has standing against Rady. Even if you take out the fact that the provider misused gender pronouns, if Kyler was in fact released from care early simply to avoid further mistreatment, he plainly was denied equal treatment based on his sexual identity.

It’s Not Just Gender Insensitivity Issues Either

What happens when a transgender patient identifies themselves in one manner, but has yet to take measures to be identified in that manner legally? It’s an issue providers are finding themselves facing.

Patient misidentification isn’t unheard of and, just to name a few concerns, can affect drug administration, blood transfusions, and surgical interventions. Medical malpractice anyone?  When healthcare providers treat patients, there’s a strong emphasis on the responsibility to check and follow protocols when identifying patients and match those patients with the correct care.  These protocols include identifying patients by their legal name and using the same name throughout care.

Take, for example, a hypothetical transgender patient who identifies as a man and goes by the name of Joe, however, legally Joe is still identified as a female named Jill.  Is it discrimination for a healthcare provider to refer to Joe as Jill?

I imagine using legal names is okay so long as providers are using the correct pronouns, but even then that could get confusing for identification purposes. Perhaps the solution is to make notes on patient files that a patient prefers to be called by a certain name, just like back in school when your teacher would ask if you preferred to be called Will over William.  Even then, if providers continue to ignore requests, such as alleged in Kyler’s case, there’s definitely a wider net to cast a discrimination case.  It’s a slippery slope that the healthcare industry is going to have to navigate carefully.