The White House delivered a silent blow to women and LGBT people when it removed language specific to sex discrimination from the Department of Health and Human Services’ Office for Civil Rights website, but the removal of such language could have far-reaching effects considering Donald Trump’s pick of Brett Kavanaugh to fill Anthony Kennedy’s Supreme Court seat.
It’s not the first time the Trump administration has scrubbed language from White House pages. Previously, the administration removed language about issues pertaining to LGBT people from federal websites, and last summer, it was discovered that Trump, a man who admitted to sexually assaulting women, had removed a report on rape from a federal website. Now, it’s been discovered that Trump and his cronies removed language prohibiting harassment and stereotyping based on sex, according to a report this week from the nonprofit watchdog group the Sunlight Foundation.
The National Women’s Law Center, which filed Freedom of Information Act requests querying why the language was removed, was the first to discover the specific language was expunged in 2017. Removal of the wording, which pertained to section 1557 of the Afforable Care Act, from the HHS Office for Civil Rights website stands to affect how the government investigates complaints and enforces federal civil rights laws that apply to doctors, hospitals, and other health care providers that receive federal funding, according to Mashable.
Section 1557 made it illegal to discriminate against people based on whether or not they meet gender stereotypes, which is in keeping with something the Supreme Court found in a 1989 decision in Price Waterhouse v. Hopkins. Since then, the courts have repeatedly ruled that people cannot be discriminated against based on sexual orientation (or perceived sexual orientation) or based on gender identity. But those protections are threatened under Trump, whose administration has long shown little interest in enforcing section 1557. And Kavanaugh, as a federal judge, has shown a disinclination to enforce government regulations at all.
At the time the NWLC discovered that language protecting against sex discrimination had been removed from the site, it noted:
“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.”
NWLC took the removal of the language as “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,”officials with the center wrote at the time, pointing to Trump’s proposed ban on transgender people serving in the military as one of the most egregious examples of discrimination.
The removed language, the Sunlight Foundation found, was in a question-and-answer section on the site about 1557 and explicitly stated what constitutes discrimination and how to handle it:
“Consistent with longstanding principles of Federal civil rights principles, section 1557 prohibits harassment based on race, color, national origin, sex, age or disability. Covered entities must respond promptly and effectively to sex-based harassment of individuals in their health programs or activities, by taking action to eliminate the harassment, prevent its recurrence, and address its effects.
“For example, if a male nursing home resident is harassed by staff based on his non-conformity with stereotypical notions of how a man is expected to act or appear (including mannerisms, apparel, or grooming choices), that may constitute discrimination on the basis of sex that must be addressed by the entity. The nursing home must take action to stop the staff harassment, prevent it from recurring, and address the effects of the harassment. In addition, the nursing home should adopt policies addressing sex-based harassment to make it clear to make it clear that such harassment is not tolerated in the workplace.”
A former director of the Office for Civil Rights, Jocelyn Samuels, told Mashable, "I would say that these latest actions removing text from the website are part of a pattern of refusals to act on behalf of women or LGBT people, in ways that are tremendously damaging to their health and wellbeing."
While the language was removed more than a year ago, the Sunlight Foundation released its report ahead of HHS releasing its new regulations, which could come out as early as this month.