At first glance, the United States Supreme Court’s 303 Creative LLC. v. Elenis ruling has nothing to do with health care—but, looking deeper, experts in oncology and law are sounding alarms that the decision can be used to discriminate against LGBTQ+ patients.
On June 30, the Supreme Court ruled in favor of Lorie Smith, a Colorado website designer, affirming that her business, 303 Creative, cannot be forced to build wedding websites for gay couples.
“What we’ve heard really loud and clear is that the Supreme Court has just moved out of step with a body of legal precedent and the opinions of the rest of the country and made it legal for a business to discriminate against us,” NFN Scout, executive director of the National LGBT Cancer Network, said to The Cancer Letter. “While the opinion is a very narrow one, its impact—as far as sending a message that it’s OK to discriminate—is exceptionally large.”
The decision could exacerbate existing cancer health disparities and worsen barriers to care for sexual and gender minorities, the American Society of Clinical Oncology said in a statement published on Twitter.
“We’re concerned about the potential downstream effects of the SCOTUS decision on the experiences of the LGBTQ+ individuals,” Clifford Hudis, CEO of the American Society of Clinical Oncology, said to The Cancer Letter. “For ASCO, dedicated as we are to ensuring equitable access to high quality care for all patients, we want to be clear that we see this threat through both the narrow lens of cancer care, the broader lens of healthcare, and across all of society.”
The American Cancer Society said it is assessing the implications.
“We’re looking at the implications of this case as it relates to LGBTQ+ patients’ ability to access care,” said Karen E. Knudsen, chief executive officer of the American Cancer Society and its advocacy affiliate, the ACS Cancer Action Network. “We believe that every person, regardless of their race, color, national origin, gender identity, sexual orientation, age or disability deserves to be given equal access to timely, quality, comprehensive health care without discrimination.”
The relationship between patient and provider could be at stake, too, said Don Dizon, director of the Pelvic Malignancies Program and Hematology-Oncology Outpatient Clinics at Lifespan Cancer Institute, director of medical oncology at Rhode Island Hospital, and founder of the Oncology Sexual Health First Responders Program.
“If the recent decision from the Supreme Court becomes something that is enacted on an office-by-office basis—that they can reject care or they can be religious objectors to the provision of care to the LGBTQ community—you’re really talking about things that are going to stand in the way of a doctor patient relationship, and at its worst prevent care for those who need it because they don’t fit into your religious view,” Dizon said to The Cancer Letter.
Chunkit Fung, associate professor of medicine at University of Rochester’s Wilmot Cancer Institute, and a member of the Human Rights Campaign’s Board of Governors, said he fears that institutions could twist this ruling and apply it to hospital systems. Fung said he is not speaking on behalf of Wilmot Cancer or HRC.
“They’re using the freedom of speech to deny a protected class of people—LGBTQ+ people—services,” he said. “I’m very worried—where does the boundary end for what they call freedom of speech? In the medical field, what does that really mean? Can a provider at some point say, because you’re LGBTQ+, and somehow use that argument to deny medical care to people? That opens the door for further cases to say, ‘Because of my own belief or religion or whatever that might be, I don’t feel comfortable taking care of you.’”
B.J. Rimel, medical director of the Cancer Clinical Trials Office at Cedars-Sinai Cancer, and associate professor of Obstetrics & Gynecology at Cedars-Sinai, also fears the reverberations of the Supreme Court’s ruling.
“The ruling is opening the door for those who wish to discriminate based on sexual orientation (or other things) to do so,” she said. “For physicians and providers of cancer care, our mission is to care for all patients, regardless of sexual orientation, gender, race, ability to pay and so on. Discrimination causes real and palpable harm.”
The ruling comes at a time when anti-LGBTQ+ laws banning gender-affirming care in trans youths are being passed across the country. Religious Freedom Restoration Act laws have already given medical providers a way to refuse care by saying that it is against their religion, Scout said.
“The sad truth is this may be a very public declaration of what’s already been happening in the medical world for quite a while now,” said Scout, who uses they/them pronouns.
At this writing, there are 561 bills in 49 states that put trans people at risk.
“The Supreme Court decision, during a time when a wave of anti-LGBTQ+ bills is sweeping the country, is making a segment of our catchment area communities’ second-class citizens,” said Zul Surani, associate director of Community Outreach & Engagement at Cedars-Sinai Cancer.
Rimel and Surani co-authored a commentary, published by the Association of American Cancer Institutes, and spoke with The Cancer Letter (April 29, 2022) about a LGBTQ+ Cancer Symposium held by Cedars-Sinai.
“Cancer centers are charged with ensuring equity in cancer prevention, control and care for all Americans and this is the time when we have to step into our power and organize for inclusion and justice at all levels of our society,” Surani said.
How could a case related to website design—and seemingly unrelated to health care—apply within the oncology setting?
“The application of the decision will be basically anybody who can fit within the rubric that the Supreme Court has created in its analysis,” said Alexander Chen, founding director of the LGBTQ+ Advocacy Clinic at Harvard Law School, where he also teaches gender identity, sexual Orientation, and the law. “What they have suggested is that if the business that you are engaged in implicates the First Amendment, because it is about free speech, then it will apply.”
Chen said this ruling is removed from medical practice and applies to creative settings—the business of a photographer, an artist, or a website designer. However, because the decision is rooted in free speech, it could affect medical practice.
“This particular court has been very hostile to the idea that there’s something called professional speech,” Chen said to The Cancer Letter. “It really casts doubt on the ability of medical institutions and organizations to be able to regulate when their practitioners and nurses and other employees are using words that engage in medical practice.”
At what point during a doctor’s visit does free speech occur?
“This is what is also very dangerous because then, really, the question then becomes, well when you fill out a referral form, are you engaging with speech? When you’re writing a prescription, are you engaging with speech?” Chen said. “That, I think, is why the alarm is sounding for these esteemed medical institutions, because they can see how, actually, we use words a lot in many aspects of medical practice and other professional things that we do.
“If we start saying that people can say whatever, because we have First Amendment rights and we don’t recognize that these are particular contexts of employment, then where does that end? And how can you run these institutions if large swaths of the people that work for you are saying that they have a constitutional right to not do their jobs?”
What’s undeniable, however, is that this decision expands the scope of discrimination.
“Especially for LGBTQ+ people, and especially for transgender people in particular, there’s tremendous concern that this is going to open the door to a lot of discrimination,” Chen said. “We also have anecdotes and stories and lawsuits around the different kinds of discrimination that people have faced within the healthcare system.”
“For every 1,000 cases of discrimination, only one case makes it to court”
Supreme Court decision aside—the issue of a doctor or medical institution discriminating against a patient for their sexual or gender identity is not new.
“We also have anecdotes and stories and lawsuits around the different kinds of discrimination that people have faced within the healthcare system,” Chen said. “Especially for LGBTQ+ people, and especially for transgender people in particular, there’s tremendous concern that [the Supreme Court decision] is going to open the door to a lot of discrimination.”
Cases of discrimination do not often make it to court, Chen said.
“As a lawyer, you learn that for every 1,000 cases of discrimination, only one case makes it to court,” he said. “Many things happen that people do not report, or do not realize that legal rights were even violated. And even if they did, they didn’t find competent legal representation or representation that they could afford, and they did not enforce or vindicate those rights.
“And so, unfortunately, every time something like [this decision] happens, it does give people the impression that they can say, ‘I don’t want to fill that prescription for you because of your identity. I don’t want to see you, I don’t want to practice on you as a nurse. I don’t want to see you in my practice. This hospital is not going to schedule surgery for you.’”
The fear of discrimination worsens when the only nearby hospital is run by a religious group that is historically unaccepting of the LGBTQ+ community, or, potentially, other groups.
“We already know that in our own community, if our closest hospital is a St. Mary’s, we’re already worried because the Catholic church has reaffirmed its bigotry against the LGBTQI communities every few years for our whole lives,” Scout said. “Do you want to walk into a whole medical system that has affirmed its bigotry against you when you’re in a life-threatening situation? All of these things cause additional strain and stress.”
Oncologist Dizon, who leads several programs within oncology, braces himself to encounter discrimination.
“Speaking from my own personal experience, I even go into medical scenarios prepared to be discriminated against because I’m gay,” Dizon said. “It is not uncommon, and it’s certainly maybe an experience, prior to care with other providers, where that exactly is what happens. You have to be prepared for hostility.”
In one study on survivorship conducted by the National LGBT Cancer Network, Scout recalls a patient who explained how she texted her mother before she went in for cancer surgery.
“I’ve got cancer. I have to go in for surgery,” the patient wrote.
“Good, I hope you die,” the mother replied.
“That was literally her response to her own daughter because of her homophobia,” Scout said.
The Supreme Court decision will encourage more behavior like this, they said.
“The idea that more bigots will feel like that is a perfectly appropriate stance to take is crazy,” they said. “It’s sad because we don’t have the support we need in a potentially life-threatening health event. We need everybody on our team, and this decision makes it easier for people to actively be working against us.”
The SCOTUS decision could exacerbate disparities and medical mistrust
People who face more social stress have greater overall illness burden and worse outcomes, Hudis said.
The Supreme Court’s 303 Creative decision could only worsen these disparities.
“Any action, even broadly, that erodes anti-discrimination protections, has the potential to exacerbate those existing disparities and worsen a community’s access to services. That’s across all of society, and it includes healthcare,” he said. “We think the decision could undermine our efforts to be respectful of patients and to meet them where they are as we partner with them in designing and delivering their care.”
Medicine can be intimidating to people who are unfamiliar with it. Couple that feeling with medical mistrust, and patients could face worse outcomes, Hudis said.
“Navigating this space requires that patients and families trust their physicians and nurses,” he said. “Building trust and developing the kind of rapport and relationship with patients that allows them to take a little bit of a leap of faith for them and take their clinicians’ guidance is really important to getting optimal outcomes.
“Feeling as if they can’t express themselves honestly or rely on everyone to treat them with respect may undermine that trust.”
Medical mistrust can lead to dangerous outcomes in cancer, Scout said.
“Truth be told, we’re not as likely to get screened. We’re more likely to find cancer in late stages. We’re less likely to even follow doctor advised treatments—but what makes me sad is the number of people who aren’t even going to the doctor to get an HPV vaccine because of medical mistrust,” they said. “A couple decades later, they’re one of the people who gets an HPV-related cancer that was totally avoidable.”
Oncology is multidisciplinary, which means that the patient must trust every provider on their care team, Dizon said.
“The problem in oncology, really, is that it’s not as if you make a relationship with one open-minded oncology provider,” he said. “If you’re coming into cancer for the very first time as a gay person or as a transgender person, you’re talking about risks of meeting new people as you try to create your team. You face—How do I disclose? And what do I do if they don’t want to treat me?”
The fear of discrimination also causes harm, said Cedars-Sinai’s Rimel.
“If patients feel they will be discriminated against, they might not seek cancer care, or might not participate fully, or they might be terrified that they will be found out,” Rimel said.
Protecting LGBTQ+ patients
Cancer centers and organizations can ensure that LGBTQ+ patients are protected.
For Scout, the primary way to demonstrate for a cancer center to demonstrate that it supports LGBTQ+ patients is to post something on its website. Recently, they visited one organization that had a three-and-a-half story high Pride flag hanging off their building.
“It was amazing. The biggest I’d ever seen,” they said.
But when it came to searching the word “transgender” on the organization’s website nothing came up.
“You have a Pride event, you have a three-and-a-half story pride flag during Pride Month, but we need to be able to figure this out all year round,” Scout said. “When we go to your website, how can we figure out that we’re safe? And then when we walk into your office, how is that reaffirmed? Do we see welcoming imagery? Do we see people with pronouns on their lanyards? Do we see non-discrimination statements? Do we see data collection in electronic health records?”
Protecting LGBTQ+ patients shouldn’t end there.
“When I actually interact with humans there, does that happen with dignity? Are they going to use my chosen name? Are they going to use my real pronouns? Are they going to know the difference between what might be on my health insurance card and what my reality is? Are they going to be able to do an organ inventory?” Scout said. “Are they going to be able to be creative to figure out how to treat a hormone-interactive cancer in the absence of almost any research on how to do that? Are they going to stand up for me in checking to make sure the other people they refer me to are also going to be welcoming? Are they going to hold all the different support teams they have to the same standards?”
Identifying your pronouns is one powerful way to combat the Supreme Court’s decision, they said.
“It just means you understand this historic discrimination, and you don’t want to be part of it,” Scout said. “It sends a much bigger message than a pronoun alone. What it’s saying is, ‘I’m not part of that problem. I’m trying to be part of the solution.’”
Where does the boundary end for what they call freedom of speech? In the medical field, what does that really mean? Can a provider at some point say, because you’re LGBTQ+, and somehow use that argument to deny medical care to people?
Chunkit Fung
Fung agrees. In his own practice, he introduces himself with pronouns.
“I wear pronouns,” he said. “We need to be using very non-biased language when we take care of patients, and really trying to understand the social barriers and also the social determinants of health.”
Fung is also open with his patients about his own sexuality.
“Being a gay physician—just being open to them about who I am,” Fung said. “I have several patients who know I’m gay. Two patients actually came out to me. I was the first person they came out to.”
Allyship is another important part of supporting LGBTQ+ patients, Fung said.
“They’re trying to get us all back in the closet with all these scare tactics, but we just have to stay even more visible—and they can’t put us all back,” he said.
In 2017, ASCO released a position statement with recommendations on how oncology can work better to understand the needs of LGBTQ+ patients and practitioners, and then work further to address them, Hudis said.
“We called for providers to adopt and highlight sexual and gender-minority-affirming policies and practices that, for example, would address issues like hospital visitation, surrogate medical decision-making, promotion of research to reduce SGM health disparities, and inclusion of SGM individuals in clinical trials, along with collection generally of sexual orientation and gender identity data,” Hudis said.
An update to the 2017 position statement is forthcoming.
Data collection is another important part of increasing support for LGBTQ+ patients with cancer, Hudis said.
“Fundamentally, oncology strives to be evidence-based, but some of these vulnerable patient populations haven’t been carefully studied,” he said. “We need to keep gathering that data because not only does it answer questions, but it reminds everybody of the importance of the issue.”
The public has the power to respond to the Supreme Court’s decision, Rimel said.
“If cancer centers come out strong against this kind of rhetoric, if physicians and providers practice the expansive compassion of inclusion, and if we continue to examine our outcomes, I think this damage can be reversed,” she said.
The onus is on doctors to speak up, Scout said.
“Doctors are incredibly influential in our society, which means that they have a bully pulpit to stand up and say, ‘We think this is important,’” they said. “I really look forward to more medical societies speaking up, and also not just putting out a press statement, but asking for a higher standard of behavior from their members.
“The Supreme Court has a big megaphone. We’re trying to counter the Supreme Court’s megaphones, and that means we need a lot of other smaller megaphones to put out a different message.”
