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Health and Human Services Department removes website’s language on sex discrimination

This isn't the first time the department has removed information about vulnerable groups.

HHS Secretary Alex Azar appears to testify before the Senate Health, Education, Labor and Pensions Committee, on Capitol Hill June 12, 2018 in Washington, DC. (Photo Credit: Mark Wilson/Getty Images)
HHS Secretary Alex Azar appears to testify before the Senate Health, Education, Labor and Pensions Committee, on Capitol Hill June 12, 2018 in Washington, DC. (Photo Credit: Mark Wilson/Getty Images)

The Office for Civil Rights at the Department of Health and Human Services changed or removed information on its website about sex discrimination, according to a new report from the Sunlight Foundation.

The Office for Civil Rights altered this information on several webpages on Section 1557, part of the Affordable Care Act that relates to sex discrimination, between March and August 2017, according to the nonprofit focused on government transparency. Now, mentions of sex discrimination on the basis of gender identity, that relate to requirements for health services for transgender people, “sex stereotyping,” and termination of pregnancy are gone.

The National Women’s Law Center, which first noticed the removal of this language, filed FOIA requests to find out more about why it was removed. Advocates for legal protections for those facing discrimination based on gender, sexuality, or pregnancy are worried that the removal of this language is a sign of policy changes to come.

Religiously affiliated health care providers challenged the ACA’s anti-discrimination provision in 2016. That year, a Texas federal judge essentially stopped HHS from enforcing the gender identity and termination of pregnancy parts of that provision through an injunction. But the recent removal of the language is still notable. Some of the language HHS took out is related to areas that the injunction did not touch, such as sex stereotyping and sex discrimination that isn’t about gender identity. Despite the injunction, the law still exists and its meaning hasn’t changed but HHS still took out information from an FAQ about Section 1557, about how it prohibits discrimination against gender identity.

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In April, the Justice Department filed a notice in pending litigation over these Section 1557, because it said the parts of the rule — on gender identity and termination of pregnancy — were unlawful, given the federal judge’s ruling. The department said that that soon, HHS would issue new regulations. The section of the ACA they’re fighting says that health insurers can’t put restrictions on health services for transgender people who are transitioning, which means trans people can have better access to services like hormone therapy and surgery, for example. On Tuesday, advocates for LGBTQ rights rallied against efforts to roll back the rule.

This battle over who sex discrimination protects has reverberated across agencies.

In February, the Education Department said it would not investigate complaints from transgender students who have been denied access to bathrooms that correspond with their gender. A department spokesperson said that Title IX, a federal civil rights law that says people can’t be discriminated against in education programs on the basis of sex, did not protect transgender student — despite two federal court rulings that found the opposite. Education Department spokesperson Liz Hill told BuzzFeed News that Title IX “prohibits discrimination on the basis of sex, not gender identity.” The department also removed resources for trans students from the department’s website.

In March, Department of Housing and Urban Development Secretary Ben Carson said he delayed implementing a rule that protected transgender homeless people at shelters because “There are some women who said they were not comfortable with the idea of being in a shelter, being in a shower, and [there being] somebody who had a very different anatomy.” The rule said that shelters have to address privacy and safety concerns without segregating trans people or refusing them service.

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The Department of Health and Human Services (HHS) has taken a number of steps that concerned advocates for the LGBTQ community since the beginning of the Trump administration. Last year, HHS removed a “Lesbian and bisexual health fact sheet” from its website. HHS told Quartz in March that the “outdated lesbian and bisexual health pages were removed and the health content was integrated into the relevant health topics pages across the website,” but Quartz did not see any evidence of that on the site. HHS also ceased including questions about the LGBTQ community in surveys that relate to services for elderly people and people with disabilities.

HHS recently created a new division within the Office for Civil Rights, called the Division of Conscience and Religious Freedom. This division is supposed to ensure that health care providers don’t have to provide services, such as abortion, that they object to morally or religiously. Roger Severino, who is in charge of the Office for Civil Rights, has argued that health care providers shouldn’t have to help transgender people transition.

On Thursday, the Center for Reproductive Rights and the National Women’s Law Center filed a lawsuit against HHS for refusing to release records on the new division.

In a statement to ThinkProgress, Gretchen Borchelt, NWLC vice president for reproductive rights and health, said, “This administration is prioritizing religious beliefs over patients’ access to care. It’s a perversion of HHS’ mission that cannot be ignored. We’re filing this lawsuit to force the Trump-Pence administration to justify why it’s using resources to fund discrimination, rather than to protect patients.”