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HHS Faces Severe Backlash for Blocking Comments on Proposal to Limit LGBTQ Health Care

The Trump administration continues its erasure of LGBTQ Americans by blocking thousands of comments that don't conform to its wishes.

Marilyn Drew Necci | December 19, 2017

If there’s one thing we’ve learned from the first year of the Trump administration, it’s that there’s nothing fun about watching your government attempt to erase your existence. From the Department of Justice filing legal briefs in support of anti-LGBTQ businesses to Trump himself fighting his own Defense Department as well as quite a few Federal judges to throw trans people out of the military less than a year after they made it in, it’s been a difficult year for LGBTQ people just out here trying to live under the current administration.

This week, Trump’s Department of Health and Human Services (HHS) has gotten into the act in a big way. Following hot on the heels of their scandalous decision to ban several terms, including “transgender,” from official budget documents, today the news has broken that HHS is also hiding over 10,000 comments from the public on their proposal to allow religious discrimination in health care.

On October 25, HHS posted a proposal on federalregister.gov entitled “Removing Barriers for Religious and Faith-Based Organizations To Participate in HHS Programs and Receive Public Funding.” Of course, the main barriers stopping faith-based groups from receiving public funding right now are their troublesome desires to pick and choose who they offer help, on the basis of specific characteristics such as gender identity.

Indeed, an Obama rule set to go into effect on January 1, 2017, stating that doctors could not deny patients care on the basis of their gender identity, was blocked by a Texas judge the day before it was to become law, in response to legal actions taken by the Catholic Benefits Association and quite a few other faith-based health care organizations.

The HHS proposal offering greater opportunities for faith-based health care organizations to receive federal funding was posted on October 25, and received 10,729 comments in response. However, as of one month later, only 80 comments have been made available for public view. Shannon Royce, the head of HHS’s Center For Faith-Based and Neighborhood Partnerships–the group that originally posted the proposal–claimed that the agency hasn’t posted more comments because they’ve been overwhelmed by the task. “There has been a voluminous response to the [request for information], and the center’s team is working through a review of the submissions,” she said in a statement Monday night.

However, many groups noted that of the comments that have been made public, which constitute less than 1 percent of the amount submitted, they are overwhelmingly tilted in favor of the Trump administration’s proposal–71 in favor, only 9 against. This has led some to cry foul. “The government can’t discriminate in a public forum,” Democracy Forward lawyer Rachael Klarman said to Politico. “There’s some recent case law that would suggest that’s a pretty big problem under the First Amendment.”

Americans United for Separation of Church And State have filed a Freedom of Information Act request for the contents of the comments that haven’t been made available as yet. Speaking to Politico, that group’s spokesperson, Alison Tanner, said “there may be grounds” for a legal challenge on the basis that HHS is in violation of the E-Government Act and the Administrative Procedure Act, which require government agencies to both solicit and publicly post comments on proposals for agency rules.

Other groups pointed out the larger Trump administration pattern of LGBTQ erasure that we noted at the top of this article. “This is part of a disturbing pattern across the Trump-Pence Administration of refusing to even study the unique healthcare and other needs of LGBTQ people, jeopardizing science-based assessment of heath disparities and undermining access to programs and services that are vital to the health and well-being of LGBTQ people,” said Human Rights Campaign’s Director of Government Affairs, David Stacy. “If Donald Trump and Mike Pence believe we are going to remain silent and permit this dangerous trend to go unanswered, they are sorely mistaken.”

Of course, when they don’t publicly post our comments on rules that will potentially jeopardize our health care, it may not make much difference whether we are silent or not. Indeed, according to South Texas College Of Law Houston associate professor Josh Blackman, the whole comment process is mostly meaningless. “The rulemaking process is Kabuki theater,” Blackman told Politico. “It’s not going to matter what liberal groups submit — even though it’s supposed to.”