In 2017, the Department of Health and Human Services (HHS) altered or removed language on its website aimed at helping individuals understand what kinds of sex discrimination the government prohibits under the Affordable Care Act, a government-transparency group has found.
Under the Obama administration, HHS determined that Section 1557 of Obama's signature health-care legislation (commonly known as Obamacare) gave the department the power to enforce prohibitions against various kinds of sex discrimination, including discrimination based on individual's gender identity or their use of abortion services.
Advocacy organizations, however, worry that these language removals might foreshadow the disappearance of various Obama-era prohibitions against sex discrimination, especially when it comes to protecting the rights of transgender people or those who have received abortions.
Anticipating that HHS will soon reveal its new policy in regards to Section 1557—perhaps by the end of this month—advocacy groups have been working to predict what sort of changes the country can expect.
For some, like the National Women's Law Center, this has meant scrutinizing HHS's website—particularly the site of the Department's Office for Civil Rights (OCR)—for changes that might serve as harbingers for coming policy changes or subterranean shifts in priority. It was the NWLC that first noticed the changes to the OCR's language about sex discrimination—and then brought its findings to the non-profit Sunlight Foundation's Web Integrity Project, which works to document changes to government websites. Pacific Standard has previously reported the group's discovery of changes to other government sites, including Medicare.gov.
Using the Wayback Machine, a massive archive that snapshots past versions of Web pages, the WIP confirmed and analyzed the changes. While wide-ranging, some of the more significant language changes included the removal of an explanation that sex discrimination can be based on gender identity; the disappearance of what sort of health care the law requires be made available for transgender people; and the elimination of an FAQ answer that explained that "categorical coverage exclusions or limitations for all health care services related to gender transition are discriminatory."
In a WIP blog post published on Thursday, Jocelyn Samuels, the last director of the OCR under the Obama administration, said that the website changes have had "a damaging impact, because the existence of this language ... was intended to inform those subject to discrimination that they continue to have rights." Samuels goes on to say that the changes suggest "that OCR is not intent on informing people about the extent of the rights they continue to have."
Whatever the website changes might mean for the current HHS, the WIP notes that challenges to Obamacare precede the Trump administration: In 2016, a group of religiously affiliated health-care providers challenged parts of the law's anti-discrimination provisions, arguing that the provisions effectively coerced them into performing and supporting gender transition surgery and abortions in what they argue is a violation of their religious freedom. While the case is still in federal court in Texas, in December of 2016 a judge offered a preliminary injunction that prevents the HHS from enforcing prohibitions based on gender identity or termination of pregnancy—a significant blow to the law at the end of the Obama presidency.
While the injunction could explain some of the changes to HHS's website—as WIP notes, the changes in language also include the addition of material that describes the effects of the injunction—WIP says that removals go well beyond the areas that the injunction specifically prohibits. As Rachel Bergman, the director of programs at WIP, explains, various parts of the website were scrubbed of references to prohibitions against sex stereotyping or sex discrimination not based on gender identity—two areas of the law upon which the injunction has no bearing.
Furthermore, Bergman notes that, while HHS is prevented from enforcing certain aspects of Section 1557, the regulations the section outlines are still law, and the definitions it offers for sex discrimination are still relevant.
"While HHS can no longer enforce prohibitions on gender identity and termination of pregnancy, individuals can still file lawsuits themselves," Bergman told Pacific Standard. "And without the information that simply defines sex discrimination, they are no longer seeing that information and knowing what their own legal rights are."