By Erika Hanson, National Women’s Law Center
Is the federal government undermining our long-standing understanding of sex discrimination?
We’re using Freedom of Information Act—or FOIA for short—to find out. Today, NWLC filed another FOIA request to gather information as to whether the Department of Health and Human Services’ (HHS) is doing its job to protect women and LGBTQ patients from unlawful discrimination in health care.
HHS is one of the federal agencies in charge of enforcing the nondiscrimination provision of the Affordable Care Act (ACA)—commonly referred to as “Section 1557.” Section 1557 protects individuals from discrimination on the basis of race, color, national origin, sex, age, and disability in health programs or activities that receive federal funding. Notably, this provision is the first broad federal law prohibiting sex discrimination in health care.
Nearly 30 years ago, the Supreme Court confirmed that discrimination based on stereotypical ideas about an individual’s sex—or sex stereotyping—constitutes illegal sex discrimination. For example, it is discriminatory for an employer to pass over a woman for a promotion because she acts or dresses in a “masculine” way. Since then, courts have repeatedly held that discrimination against people because of their sexual orientation (or perceived sexual orientation) and discrimination against people because of their gender identity are types of discrimination that fall under the umbrella of unlawful sex discrimination.
The Obama administration made clear to the public that it would follow these long-standing principles of sex discrimination when enforcing Section 1557—i.e. that HHS would protect women and LGBTQ patients from sex discrimination in health care. Under the Trump administration, however, language from HHS’s website has been quietly altered to remove sex stereotyping, sexual orientation discrimination, and gender identity discrimination from the agency’s definition of sex discrimination. According to the current state of HHS’s website, there is only one example of sex discrimination: pregnancy discrimination.
Obviously, this change is not supported by our long-standing understanding of sex discrimination and NWLC’s FOIA is aimed at getting to the bottom of why this change was made.
Adding to the evidence of broader, government-sanctioned discrimination
This change appears to be part of a concerted action to undermine sex discrimination protections and encourage blatant, government-sanctioned discrimination against all people who don’t fit a narrow view of life and family. In just the past couple of weeks, the Trump administration has tried to ban all transgender people from serving in the military and the administration filed a court brief arguing that employers should be able to fire “homosexual” employees. And let’s not forget about all the other recent attacks on our civil rights.
Why use FOIA?
You may have noticed that NWLC and other organizations concerned with protecting people’s civil rights have been filing a lot of these requests lately. That’s because FOIA is a powerful tool in gathering information from the federal government (information that the public has a right to know). FOIA requests are particularly important when the government is being shady in its attempts to roll back communities’ rights and protections. And the public can actually gain a lot of valuable information from FOIA requests.
Right now, many of the administration’s positions civil rights and other protections are unclear. Like putting together a puzzle without the box, we only get small glimpses into the larger picture that is forming. But FOIA is an important tool in gathering more information to fill in the missing pieces so that ultimately, the public knows and understands what the federal government is (or isn’t) doing to protect us.
Because people have the right to know whether the federal agencies entrusted with protecting our civil rights are doing their job, NWLC is continuing to file FOIA requests to uncover potential changes in federal policy that will affect our communities.
Because when you come for one of us, you come for all of us.