Creating Inclusiveness for Transgender Patients

As a nursing professional, being attuned to the needs of transgender patients helps you ensure their health needs are met and reduces the risk of legal liability.

Fulfilling that commitment requires you to understand the unique needs of various patient populations, including those who are transgender. Failure to deliver proper care to transgender patients not only puts you in opposition to nursing ethical principles, but can leave you liable for legal action.
 
Fortunately, being attuned to the needs of transgender patients helps you ensure their health requirements are met and reduces the risk of legal liability.
 
Terms to know
It’s important to understand some basic terminology related to being transgender.
 
According to Lambda Legal, gender identity is a person’s inner sense of being male, female, or another gender; this identity isn’t necessarily the same as sex assigned or presumed at birth. Gender expression is how a person expresses gender through dress, grooming habits, mannerisms, and other characteristics, such as wearing makeup or growing a beard.
 
Transgender refers to people whose gender identity differs from their assigned or presumed sex at birth. And transitioning refers to shifting over time from the social role of one gender to another.
 
Challenges in care
Transgender people face significant challenges when it comes to health and healthcare. Of the 27,715 respondents to the 2015 U.S. Transgender Survey, an alarming 39% experienced serious psychological distress in the month before completing the survey, compared with just 5% of the U.S. population. In addition, 40% had attempted suicide in their lifetime, nearly nine times the rate (4.6%) in the U.S. population.
 
When transgender people seek treatment, they too often encounter mistreatment. The 2015 report noted that in the year before the survey, 33% of those who saw a healthcare provider had at least one negative experience related to being transgender, such as being verbally harassed or refused treatment. Transgender men, people of color, and those with disabilities reported even higher rates of negative experiences.
 
In a 2010 study that didn’t specify a time frame for discrimination, 70% of transgender and gender-nonconforming respondents reported at least one of the following experiences: being refused needed care, healthcare professionals refusing to touch them or using excessive precautions, healthcare professionals using harsh or abusive language, being blamed for their health status, or healthcare professionals being physically rough or abusive.
 
The potential for a negative experience can hold people back from getting care; 23% of respondents to the 2015 report didn’t seek the healthcare they needed in the year before the survey because they were afraid of being mistreated as a transgender person. And the 2010 survey found that nearly 86% of transgender respondents felt that overall community fear or dislike of people like them is a barrier to care.
 
Transgender people also experience health disparities. For example, the 2015 survey found that the percentage of transgender persons living with HIV was five times the rate in the U.S. population (1.4% vs. 0.3%). Overall, 29% of respondents reported illicit drug use, marijuana consumption, and/or nonmedical prescription drug use in the past month, nearly three times the rate in the U.S. population (10%). People of color who are transgender have even greater health disparities.
 
Legal and regulatory requirements
Healthcare providers aren’t just bound by ethical standards when caring for transgender patients; they, along with the organizations they work for, must also adhere to related laws and regulations.
 
For instance, the Affordable Care Act of 2010 banned sex discrimination in healthcare settings that receive federal funds. The U.S. Department of Health & Human Services Office for Civil Rights has noted that this means discrimination based on gender identity in the healthcare setting is banned.
 
The Joint Commission requires organizations to have policies in place that prohibit discrimination based on gender identity. In addition, it has standards and elements of performance that relate to effective communication, cultural competence, and patient- and family-centered care for all patients, including those who are transgender.
 
States have also weighed in. In all, 18 states, plus the District of Columbia, have laws prohibiting discrimination on the basis of gender identity or expression.
 
Gender discrimination can be deliberate or inadvertent, caused by a lack of knowledge. However, “I didn’t know” is not an excuse that will hold up in court if you are sued by a patient who believes you discriminated based on gender identity. Discrimination may not be as obvious as outright refusing to care for a patient. For example, making it unusually difficult to schedule an appointment can lead to delayed care and patient injury. Or insisting on a pelvic exam for a patient who is transitioning and is reluctant to be examined could result in a charge of battery.
 
Protect yourself from legal action—and do right by your transgender patients—by taking several steps.
 
Know your organization’s policy
Know—and follow—the policy related to treating patients fairly; if your organization doesn’t have such a policy, collaborate with others to create one. In a publication discussing these issues, Lambda Legal recommends the policy have a clear statement: “[Name of organization] does not discriminate against any person on the basis of gender identify or gender expression.” As an advocate, be sure information related to the policy is readily available to your patients by posting it in waiting areas or distributing it with registration materials.
 
Be culturally competent
Many nursing programs have only recently started including information about the care of transgender patients in the curriculum. Supplement your knowledge of the special physical and emotional needs of this patient population by seeking out training and education.
 
Several resources are available. The Center of Excellence for Transgender Health, University of California, San Francisco, has an online course on how to create a welcoming environment for transgender people (www.transhealth.ucsf.edu/trans?page=lib-00-00).
 
On the website for the National LGBT Health Education Center, a program of the Fenway Institute, (www.lgbthealtheducation.org/lgbt-education/webinars), you can access webinars, such as one on sexual health among transgender people and another on meeting the healthcare needs of transgender people.
 
Another valuable resource is TransLine (http://project-health.org/transline/), which offers healthcare providers up-to-date clinical information and individualized case consultation.
 
Follow standards of care
Standards of care can help ensure your practice is evidence-based, an important consideration both for optimal patient outcomes and for protection in the case of legal action. For instance, not understanding the risks associated with hormone therapy could result in patient harm and subsequent court case.
 
Two resources are:  
If you aren’t managing the hormone therapy that a patient is taking, be sure to consult with a healthcare professional who is knowledgeable about the treatment. Also, continue the therapy unless there are urgent medical reasons not to. Abruptly stopping hormones may have negative physical and psychological consequences.
 
Protect privacy
Nursing professionals are well versed in the Health Insurance Portability and Accountability Act (HIPAA) requirements, but should know that privacy is particularly important for transgender patients. In fact, the court case Love v. Johnson, No. 15-11834, 2015 WL 7190471 (E.D. Mich. Nov. 16, 2015) found that transgender people have a fundamental right of privacy that protects them from being required to disclose their transgender status.
 
To avoid problems, don’t ask patients about transgender status unless it’s medically necessary. In that case, tell patients why it’s important and reassure them that the information will be kept in a confidential manner. Lambda Legal recommends a two-step method for collecting gender data on patient intake forms (see Collecting gender data).
 
Check before including any students or residents in your interaction with transgender patients. Let patients know that they don’t have to be observed or examined by those not directly involved in their care.
 
Treat the patient with respect
If you inadvertently use the wrong pronoun when first meeting the patient and are corrected, use the requested pronoun and be sure to document preferences in the health record so other staff know as well. If you are unsure what pronoun to use, politely (and privately) ask the patient.
 
If you work in a setting where there can be more than one person assigned to a room, be sure the assignment is based on the patient’s self-identified gender. Patients should also have access to restrooms in line with their self-identified gender or to gender-neutral facilities.
 
Failure to use preferred pronouns, respect room placement requests, or to provide access to restrooms based on self-identified gender could lead to charges of harassment.
 
Address problems promptly
If your patient has an issue with you or another provider or staff member, be sure to address it promptly, before it escalates. Document the issue and its resolution in the patient’s health record.
 
Caring for all
Discriminating against transgender patients is against the law, but too often it can happen in healthcare, either intentionally or through lack of knowledge. Ensure transgender patients receive the care they deserve by being knowledgeable about their healthcare needs, treating them with respect, and advocating that others treat them with respect as well. Doing so improves care, helps avoid legal action, and promotes ethical behavior.

 

Collecting gender data
Transgender patients should be able to enter their preferred gender, name, and pronoun on registration forms, even if the information differs from what is on insurance cards or other identification forms. Lambda Legal recommends the following two-step method for collecting gender data:
 
  1. What is your current gender identity? (Check one.)
  • Male
  • Female
  • Female-to-male (FTM)/transgender male/trans man
  • Male-to-female (MTF)/transgender female/trans woman
  • Genderqueer, neither exclusively male nor female
  • Additional gender category (or “other”),
    please specify:
  • Decline to answer
  1. What sex were you assigned at birth on your original birth certificate?
  • Male
  • Female
  • Decline to answer
 
The health record system should be capable of notifying providers if the name and pronouns a patient uses differ from the patient’s legal name. If this is the case, take special care to avoid errors. For example, use date of birth and patient identification number in addition to name when verifying identity.
 
Source: Lambda Legal. Creating equal access to quality health care for transgender patients: Transgender-affirming hospital policies. 2016. www.lambdalegal.org/publications/fs_transgender-affirming-hospital-policies
 

Supporting transgender patients
Follow these tips to help support transgender patients:
 
  • Don’t assume you know a patient’s gender identity by how they look and speak.
  • Use the name and pronoun the patient prefers.
  • Don’t ask about gender identity or genital status unless it’s directly related to care; if it is, explain why you are asking.
  • Use gender-neutral language such as “partner” or “relationship status.”
  • Follow HIPAA requirements closely, making sure not to include residents or students in your interactions unless the patient gives permission. In addition, do not disclose a person’s transgender status to anyone who does not explicitly need the information for care
  • Correct others if they use the wrong pronoun or make inappropriate statements.
  • Establish an effective policy for addressing discriminatory comments and behavior in your office/organization.
  • Be open and nonjudgmental.
  • Be aware of misconceptions, bias, and stereotypes that could interfere with effective communication.
  • Adhere to standards for the care of transgender patients.
  • Address knowledge deficits through education (for a glossary of terminology, visit www.transhealth.ucsf.edu/trans?page=guidelines-terminology).
  • Document your care in the patient’s health record, including patient pronoun preferences.
  • Obtain permission before performing a sexual health exam, and only conduct such an exam if medically indicated.
 
 
REFERENCES
CNA. Transgender patients: Toward a more inclusive environment of care. AlertBulletin. 2017, Issue 1.
 
Federal Register. 45 CFR Part 92. Nondiscrimination in health programs and activities. Final rule. May 18, 2016. www.gpo.gov/fdsys/pkg/FR-2016-05-18/pdf/2016-11458.pdf.
 
James SE, Herman JL, Rankin S, Keisling M, Mottet L, Anafi M. The Report of the 2015 U.S. Transgender Survey. Washington, DC: National Center for Transgender Equality.
 
National Center for Transgender Equality. Health care rights and transgender people. 2016. www.lgbtagingcenter.org/resources/ pdfs/HealthCareRight_UpdatedAug2012_FINAL.pdf.
 
Lambda Legal. When health care isn’t caring: Lambda Legal’s survey of discrimination against LGBT people and people with HIV. 2010. www.lambdalegal.org/publications/when-healthcare-isnt-caring.
 
Lambda Legal. Creating equal access to quality health care for transgender patients: Transgender-affirming hospital policies. 2016. www.lambdalegal.org/publications/fs_transgenderaffirming-hospital-policies.
 
The Joint Commission. Advancing effective communication, cultural competence, and patient- and family-centered care for the lesbian, gay, bisexual, and transgender (LGBT) community. A field guide. 2011. www.jointcommission.org/lgbt.
 
 
 
*Originally published by CNA. For additional information, please contact CNA at 1.888.600.4776. The information, examples and suggestions presented in this material have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice. CNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel and/or other professional advisors before applying this material in any particular factual situation. Please note that Internet hyperlinks cited herein are active as of the date of publication, but may be subject to change or discontinuation. This material is for illustrative purposes and is not intended to constitute a contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. All products and services may not be available in all states and may be subject to change without notice. CNA is a registered trademark of CNA Financial Corporation. Certain CNA Financial Corporation subsidiaries use the “CNA” trademark in connection with insurance underwriting and claim activities. © 2017 CNA. All rights reserved. First edition published 08/06; republished 7/17.
 
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What kinds of activities might trigger a disciplinary action by a licensing board or regulatory agency? 


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If your employees are moonlighting, either for pay or as a volunteer, they should carry an individual professional liability insurance policy to cover those services. Otherwise, they might not be covered for claims that arise out of these activities.



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