Hidden changes on a government website suggest Trump may use anti-trans ruling to gut sex discrimination laws
July 27, 2018
It’s no secret that President Trump and his administration are hostile to transgender people, even if Caitlyn Jenner only came to that realization after supporting Trump during the campaign. Trump famously decided to ban transgender people from serving in the military by declaring it on Twitter, and has aggressively resisted any effort by the courts to block him.
This administration has also pursued policies that endanger the safety of trans students in public schools and trans people in federal prisons. But now there is reason to believe that Trump isn’t just attacking trans people for who they are — though he is definitely doing that — but also exploiting prejudice against this marginalized minority to launch a broad attack on women’s rights.
Last week, the Sunlight Foundation released an extensive report on changes to the language on the Health and Human Services (HHS) website regarding the issue of sex discrimination. These changes were made in the summer of 2017 and discovered by the National Women’s Law Center, which has filed requests under the Freedom of Information Act (yet to be fulfilled), to find out why. But the fear is that soon the administration will release a rule that guts enforcement of a major provision in the Affordable Care Act meant to prohibit sex discrimination.
The provision is called Section 1557, which prohibits discrimination in health care based on race, color, national origin, sex, age or disability. Under Barack Obama, HHS codified the enforcement rules so that sex discrimination was understood as discrimination based not just on gender but also on pregnancy status, gender identity or sex stereotyping. In December 2016, in response to a lawsuit from a a religious hospital, Texas district court judge Reed O’Connor issued an injunction that undid those rules, in effect permitting discrimination based on gender identity or pregnancy termination.
The HHS website was updated shortly after that to reflect this injunction. As the Sunlight Foundation report shows, a few month later the agency took a wrecking ball to the language on the site about sex discrimination, altering far more than the passages that had addressed gender identity and pregnancy termination.
“There was widespread removal on the pages related to Section 1557 simply defining sex discrimination,” Rachel Bergman, who helps run the Web Integrity Project at Sunlight, told Salon. “We were a bit puzzled as to why the language removals were as expansive as they are.”
Specifically, the language regarding discrimination based on sex stereotyping, which is barred by the law, was removed from the website. For instance, an illustrative example of illegal sex stereotyping — in which a male patient is subject to harassment because nursing home staff perceive him as effeminate — was removed. Language explaining that sex stereotyping is “discrimination based on stereotypical ideas about gender” was also removed. Throughout the site, Sunlight’s researchers found, any reference to sex stereotyping — which again, was not an issue covered in O’Connor’s injunction — was taken down.
“When we saw these changes to the website, it was troubling because it was one part of what we expect to see, which is a general rollback” of rules against sex discrimination, explained Kelli Garcia, director of reproductive justice initiatives at the National Women’s Law Center. Her organization opposes the rollback of protections for trans people in itself, but Garcia suggested that the administration may be looking to open the door to other forms of sex discrimination as well.
“The Supreme Court has clearly recognized that you can’t discriminate against someone because they fail to meet your stereotypes about what one’s sex or one’s gender is supposed to be,” Garcia explained, citing a 1989 decision in which the court determined that it was sex discrimination to demand that women dress in a feminine fashion or to hold them to a different standard of behavior than male employees.