The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Sunday Times (Nicholas Hellen) reports:
A woman who requested a female [National Health Service] nurse to perform her cervical smear test was "embarrassed and distressed" after a person with stubble and a deep voice summoned her for the intimate procedure.
The nurse's view, apparently, was, "My gender is not male. I'm a transsexual." But the patient objected, writing:
[It was] weird where somebody says to you: "My gender is not male" and you think: "Well, what does that even mean? You are clearly a man." …
[The nurse] had an obviously male appearance … close-cropped hair, a male facial appearance and voice, large number of tattoos and facial stubble ….
People who are not comfortable about this are presented as bigots and this is … kind of how I was made to feel about it.
The NHS apologized to the patient, according to the Central and North West London NHS Foundation Trust:
We apologised to this patient for the recording error and because the staff member accepted they didn't manage the situation appropriately; the patient needed to feel listened to. Trust policy is to consider seriously all requests for clinicians of a particular gender.
Here's my thinking on this: Medical care facilities are generally legally allowed to accommodate patients' preference for male or female doctors or nurses for various intimate medical procedures, and it's good that they do so for those patients who have such a preference (and I realize that not all patients do). In the U.S., for instance, even when sex-based job assignments are generally forbidden, they are allowed when sex is a "bona fide occupational qualification," and such privacy considerations are indeed viewed as BFOQs. To quote Veleanu v. Beth Israel Medical Center (S.D.N.Y. 2000) -- a nonprecedential decision, but one that summarizes well the view of courts,
[T]he Court assumes that defendants harbored a plan for women-only health facilities and that they endeavored to accommodate patients' requests to see female doctors. That a medical entity may seek to respond to some medical treatment requests of its female patients -- an expression of preference particular to the health care field -- does not, of itself, indicate that it discriminates against male doctors. Veleanu has not introduced any evidence to substantiate any connection. An OB/GYN physician, like Veleanu, provides intimate and sensitive personal care to a women's body.
Because such care implicates the patients' privacy rights, personal dignity and self-respect, the Court believes that health care presents unique circumstances that may justify reasonable efforts to accommodate a patient's expression of preference of doctor by gender, and that female patients may have a legitimate privacy interest in seeking to have female doctors perform their gynecologicalexaminations. Indeed, other district courts have consistently recognized that privacy interests may justify adjustment of sex-based requirements for certain jobs. See Jones v.. Hinds Gen. Hosp., 666 F.Supp. 933 (S.D.Miss.1987) (hospital could terminate female nurse assistant in favor of male orderlies on the basis of gender in order to preserve privacy interests of male patients); Norwood v. Dale Maintenance Sys., Inc., 590 F.Supp. 1410, 1416-17 (N.D.Ill.1984) (allowing opposite sex attendant into washrooms while in use is intrusion on personal privacy warranting sex-based hiring policy); Backus v. Baptist Med. Ctr., 510 F.Supp. 1191, 1194 (E.D.Ark.1981), vacated as moot, 671 F.2d 1100 (8th Cir.1981) (hiring of male nurse would invade the privacy of obstetrical patients in hospital where nurse was obliged to perform sensitive and intimate tasks); Fesel v. Masonic Home of Delaware, Inc., 447 F.Supp.1346, 1353 (D.Del.1978), aff'd, 591 F.2d 1334 (3d Cir.1979) (gender-based hiring permitted for nurses in retirement home). While this Court need not address the permissible bounds to which this principle may carry, the Court finds that Veleanu has failed to raise an inference of discrimination based on either of his first two points.
By the same logic, a woman patient (for example) should be able to ask for a nurse who is physically a woman, rather than just for a nurse who self-identifies as a woman. Even if discrimination against transgender employees is legally treated the same as sex discrimination, some such discrimination is rightly allowed to protect privacy.
Of course, I recognize that some might think that privacy interests aren't a legitimate basis for discrimination (perhaps because they think that privacy concerns are just a social convention that should be rejected), and that the woman patient should just accept having the cervical test done by an employee who self-identifies as female but is apparently physically male. But if you think that, then it seems to me that you have to reject the privacy-based BFOQ altogether, and take the view that women patients must also accept having the tests being done by an unambiguously male employee.