Since day one, the Trump-Pence Administration has been trying to roll back our rights and take away protections against sex discrimination. One of the ways they are trying to do this is by redefining the word “sex” to erase trans and gender non-conforming people from civil rights protections. Well we aren’t about that. We’ve already sent a Freedom of Information Act request to the Administration to force them to divulge their plan, but they denied us. So we are teaming up with Citizens for Responsibility and Ethics in Washington (“CREW”) to use the Freedom of Information Act to fight back by appealing the Administration’s blanket denial of our FOIA request!
You might remember that the Trump Administration’s Department of Health and Human Services (HHS) was caught trying to take away our rights on October 21, 2018. That’s when the New York Times reported that it had obtained a memo from HHS outlining the agency’s efforts to establish a government-wide legal definition of sex under Title IX that would adopt an explicit and uniform definition of gender as a “biological, immutable condition determined by genitalia at birth.” Title IX protects people from discrimination on the basis of sex in education, and multiple agencies that fund education programs—including HHS—have a role in interpreting and enforcing Title IX’s provisions.
Such a definition would roll back recognition of, and protections for, transgender people under federal civil rights law, including in health care. This is a prescription for discrimination and is contrary to the intent of the civil rights laws that protect patients and allow them to get the care they need. For example, the Affordable Care Act’s Health Care Rights Law, also known as Section 1557, prohibits discrimination in health care on the basis of sex and would likely be subject to HHS’ harmful definition of sex discrimination. The Health Care Rights Law is the first broad federal protection against discrimination based on sex in health care and was intended to correct a pervasive history of sex discrimination, including discrimination based on pregnancy, gender identity, and sex stereotyping. The Health Care Rights Law currently protects trans patients from being discriminated against or denied care because of their gender identity or transgender status. But HHS is attempting to take away these protections by defining them out of existence.
And as if it couldn’t get worse, the New York Times indicated that HHS was encouraging other government agencies responsible for enforcing Title IX’s protections, including the Departments of Education, Labor, and Justice, to adopt its discriminatory definition.
Well we weren’t about to stand by and let this happen!
In response to HHS’s efforts we filed Freedom of Information Act requests with each of these key agencies asking for any records or communications between the agencies and HHS that relate to efforts to establish a legal definition of sex. We are still waiting to hear back from the government about many of these requests. But, DOJ – despite everything we know from the press reports – already denied our request, saying they have no responsive records.
Like I said, we aren’t about that.
We suspect from other court documents filed by DOJ that there must have been some communication about this subject since the start of the Trump Administration. For example, DOJ filed a brief in federal court in Texas in December 2018 arguing that discrimination on the basis of sex does not include protections on the basis of gender identity/transgender status or sexual orientation. Any efforts by the Administration to alter the legal definition of sex would impact DOJ’s position in that case. So what exactly do they have to hide? The public deserves to know what the government is doing and why they are considering a definition that will allow for widespread discrimination. The federal government is supposed to protect individuals from illegal sex discrimination, not encourage it.
So what are we doing now? With help from our friends at CREW, we are appealing DOJ’s response denying our request!
We aren’t going to let them get away with this. We are filing an appeal with DOJ today, which outlines precisely what we know about the Administration’s efforts to roll back our rights and explains that DOJ failed to conduct an adequate search for responsive documents. DOJ must comply with its obligations under the FOIA statute. We plan to make them do just that and find out exactly what they are hiding.
We will not stand by as they attempt erase protections for transgender people and roll back our rights!