HHS Budget Would Fund Discrimination at Expense of Civil Rights Enforcement

OCR Director Roger Severino, center, and then-acting HHS Secretary Eric Hargan, right, watch Sen. James Lankford (R-OK) speak at a news conference announcing the creation of a Conscience and Religious Freedom Division on January 18, 2018, in Washington, D.C.

In January 2018, the Trump administration’s Department of Health and Human Services (HHS) established a new division in its Office for Civil Rights (OCR): the Conscience and Religious Freedom Division (CRFD). According to HHS, the CRFD was established to “more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom.” However, the OCR’s Civil Rights Division (CRD) already had jurisdiction over enforcing conscience and religious freedom laws and was doing so effectively. Moreover, conscience-related complaints have historically averaged at just 1.25 per year. The establishment of an entire division for such an issue is troubling in that it indicates a reprioritization of the OCR’s mission.

HHS’ latest budget proposal further illuminates the shifted priorities of the OCR and its director, Roger Severino. Among other things, the proposal seeks to weaken enforcement of civil rights protections and give credence to discrimination against LGBTQ people. This column takes a look at how the OCR budget requests reflect the priorities of the Trump administration when it comes to civil rights—and how Severino’s policies are particularly harmful to the civil rights of LGBTQ people.

HHS’ OCR budget requests make the priorities of the Trump administration clear

In its fiscal year 2019 budget justification, HHS reported that it experienced a 48 percent increase in civil rights cases from FY 2016 to FY 2017, as well as an 18 percent increase in health information privacy cases during that period. In its FY 2020 budget request, the department also reported a 10 percent increase in cases from FY 2017 to FY 2018, but it did not disaggregate between the increase in civil rights cases and the increase in privacy cases.

Nevertheless, in its FY 2020 budget justification to Congress, the Trump administration requested cuts to components of the OCR such as the Health Information Privacy Division (HIPD) and the Civil Rights Division. It also requested more than $1 million in additional funding for the Conscience and Religious Freedom Division.

Complaints, by the numbers

In February 2018, the Center for American Progress submitted a Freedom of Information Act request to HHS for information about how many complaints the CRFD received from December 19, 2008, to February 7, 2018, as well as the outcomes of these complaints. More than a year later, the department has yet to respond to this request—despite being legally required to respond in 20 business days. According to HHS’ FY 2020 budget justification to Congress, the CRFD received 784 complaints in FY 2018 and closed 6 percent of them. However, 5 percent of these complaints did not require formal investigation, meaning that of all the complaints that were received and retained, only 10 required a formal investigation.

Although this level of detailed information was not provided for the other divisions of the OCR, a recent HHS submission to the Federal Register estimates that on an annual basis, the CRD and the CRFD receive a total of 8,433 complaints, while the HIPD receives 25,299 complaints. Given the reporting in the budget justification, this means that the CRD received approximately 7,649 civil rights complaints in FY 2018.

Despite these enormous disparities, HHS’ appropriations request decreases funding levels for civil rights enforcement in the areas with the greatest numbers of complaints. Compared with enacted FY 2019 funding levels, in its FY 2020 budget justification, HHS requested only a $57,000 increase to the CRD to reflect inflationary costs, a $2.5 million cut to the HIPD, and $7.1 million in cuts to the OCR’s Operations and Resource Division—the office’s primary enforcement arm for civil rights and health information privacy complaints. In contrast, HHS requested an additional $1,071,000 for the CFRD in order to provide salaries for six additional full-time employees, despite the fact that only 2 percent of complaints received in FY 2018 involved conscience or religious freedom issues.

On April 2, 2019, CAP obtained documents that the OCR had previously submitted to the Office of Information and Regulatory Affairs, which revealed that the Trump administration’s OCR continues to amend the complaint form in an effort to place a greater emphasis on religious and conscience complaints—marking a departure from the previous form, in which religious discrimination complaints were included under broader civil rights complaints. While the OCR acknowledges in the document that it is “enforcing initiatives in areas that are Secretary and Administration priorities,” it does not go into detail about what these priorities are. The budget request, however, provides insight into OCR’s enforcement priorities.

Funding should increase to meet increased need and be allocated to subdivisions receiving the greatest number of complaints and undertaking the greatest number of investigations; it should not be used to finance the Trump administration’s interest in advancing religious exemptions and undermining civil rights enforcement. OCR Director Roger Severino has been the key architect behind this new emphasis on religious exemptions at the expense of other civil rights protections. His efforts to reshuffle the office’s priorities could harm LGBTQ people, women, and other marginalized groups covered by federal nondiscrimination protections—such as people with limited English proficiency—and could undermine health care privacy rights for everyone.

Severino is steering the OCR in a dangerous direction

Prior to joining the Trump administration, Severino directed the DeVos Center for Religion and Civil Society at conservative think tank the Heritage Foundation. In that role, Severino railed against equal rights for LGBTQ people, commonly using scare tactics and disparaging language when referring to transgender people—going so far as to allege that transgender-inclusive nondiscrimination protections were “using government power to coerce everyone, including children, into pledging allegiance to a radical new gender ideology over and above their right to privacy, safety, and religious freedom.” Unsurprisingly, Severino was a vocal opponent of the rule implementing the nondiscrimination provision of the Affordable Care Act—Section 1557—since it agreed with a growing number of federal courts that interpreted gender identity discrimination as prohibited sex discrimination. As director of the OCR, he is now tasked with enforcing this rule.

In a report he co-authored for the Heritage Foundation with marriage and transgender equality opponent Ryan Anderson, Severino claimed that enforcing Section 1557 would “penalize medical professionals and health care organizations that … believe that maleness and femaleness are biological realities to be respected and affirmed, not altered or treated as diseases.” As CAP previously reported, in reality, the rule enabled medical providers to correct discriminatory practices and ensure that transgender people were not denied medical care simply because of who they are; doctors were not fired for their beliefs. Moreover, most closed complaints filed by transgender people under the rule involved discrimination based on their gender identity, not the type of treatment they sought.

As exemplified by the establishment of the CRFD, two cornerstones of Severino’s time as director of the OCR have been expanding harmful religious exemptions and redefining sex to exclude decades of legal precedent. In addition to establishing the CFRD, in 2018, Severino issued a rule that radically redefines federal laws to expand religious, moral, and conscience exemptions at the expense of patient care.

Public comments show how expanding religious exemptions would undermine patient care

In a request for information titled “Removing Barriers for Religious and Faith-Based Organizations to Participate in HHS Programs and Receive Public Funding,” Severino sought public comments from health care providers on potential changes to regulations or guidance. Some of the comments submitted shed light on how his office’s prioritization of and funding for the promotion of expansive religious exemptions would permit discrimination against transgender patients to go unchecked. Below are a few examples of the comments received:

  • “Now transgender are surfacing and we are being told we have to deal with their psychiatric issues as if they were normal and their demands that change daily as to who they are what they feel, we are supposed to comply with … We as health care professionals are asked to put away our convictions and vows to comply with someone’s social and psychiatric issues. We are being required to go to training on what I consider deviant lifestyles and I am supposed to accept that their life choices are normal.”
  • “We cannot comply with the Obama-era transgender mandate that requires us to put aside conscience convictions and medical judgment. We are a faith-based medical school.”
  • “The transgender mandate for referral to surgery if requested is totally against my conscience. This mandate needs to be repealed and I need to be allowed to practice high quality and caring medicine that is in the best interest of the patient. This includes not being allowed to refer gender confusion problems to appropriate counsel. How can the Government be comfortable interfering with my practice of medicine in this way?”

Reed O’Connor of the Northern District of Texas enjoined parts of the HHS rule enforcing Section 1557 of the Affordable Care Act that applied to transgender people and people who have terminated a pregnancy. While this ruling left transgender people and people seeking reproductive health care in dangerous limbo, Severino’s OCR is taking it further, refusing to enforce a much broader range of complaints of sex discrimination in health care. For example, the office’s FY 2019 budget justification states that it refers all complaints alleging sex discrimination to the Office of the General Counsel for any potential violation of the injunction, not just complaints involving gender identity and pregnancy termination discrimination. This overly broad response is alarming because, in HHS’ own words, “a consequence of this protective measure was the reduction of civil rights cases being processed and closed.”

One of the people in the general counsel’s office who is likely weighing in on which sex discrimination cases to take is HHS’ deputy general counsel, Matt Bowman. Bowman came to the department after combating reproductive rights and LGBTQ equality for more than a decade as senior counsel for the Alliance Defending Freedom—an anti-LGBT hate group.

Yet Severino’s redefinition of sex does not end with his effort to justify not investigating sex discrimination cases in health care; The New York Times also exposed an HHS memo to radically redefine gender based “on a biological basis that is clear, grounded in science, objective and administrable”—an attempt to erase not only the civil rights of transgender people but also decades of case law expanding what constitutes discrimination on the basis of sex. Although the memo was not published, Severino is the only HHS employee named in the story connected to the memo’s creation and implementation.

Conclusion

Roger Severino’s actions as OCR director demonstrate that rather than focusing on robustly enforcing all civil rights protections, he has worked to expand religious exemptions at the expense of other protected groups. His funding request to Congress lays these priorities bare and should not be rewarded with taxpayer dollars.

Sharita Gruberg is the director of policy for the LGBT Research and Communications Project at the Center for American Progress.