While Sessions Plays Coy, HHS Invites Calls for a License to Discriminate
by Harper Jean Tobin and Cerys Beckwith
In a hearing last week before the House Judiciary Committee, Attorney General Jeff Sessions once again dodged tough questions about his October 6 “license to discriminate” memo advocating broad legal rights for individuals and organizations — even individual government employees — to ignore federal laws in the name of their personal beliefs.
Meanwhile, the Department of Health and Human Services is inviting public comments on eliminating nondiscrimination rules and other protections for patients and participants in HHS programs. HHS is already receiving numerous comments calling for a rollback of landmark 2016 rules recognizing protections for transgender patients, and NCTE is calling for patients and health care providers to weigh in by November 24 to oppose a license to discriminate in health care.
Sessions dodged questions on “license to discriminate” memo
Sessions’ October 6 memo asserted a sweeping right to discriminate in many areas. Inserted between uncontroversial statements of current law were brazen assertions by Trump Justice Department such as “the government may be able to [prohibit discrimination in the name of religion] with respect to race discrimination, but may not be able to with respect to other forms of discrimination.” The memo goes on to specifically mention anti-LGBTQ bias as one such “other form of discrimination.”
At a subsequent Senate hearing, Sessions acted as though he had never considered the possibility that his memo could be construed to promote anti-LGBTQ discrimination. Asked whether a Social Security employee could refuse to process paperwork for a surviving same-sex spouse,” Sessions implausibly replied, “That’s something I never thought would arise.” Asked if a federal contractor could refused to provide emergency aid to LGBTQ people, Sessions said he wasn’t sure but “I’ll look.”
Sessions continued to dodge the implications of his sweeping legal assertions this past Tuesday. When asked to respond yes or no to a question on whether a federal employee could refuse to provide disaster assistance to an unmarried couple that lived together — on the basis of an employee’s religious belief that men and women should not cohabitate before marriage — Sessions responded, “I don’t believe that it could be interpreted that way.”
Then, when asked if a federally-funded shelter could similarly refuse an unmarried pregnant woman from assistance — based, in this instance, on the belief that sex outside of marriage is a sin — Sessions responded “I don’t think so.” Sessions’ answers fail to account for the memo’s explicit suggestion of a right to discriminate.
HHS solicits anti-trans comments
Despite the Attorney General’s apparent surprise, his memo is already being used by federal agencies to promote discrimination. Upon release of Sessions’ statement, HHS immediately rolled back access to contraceptives for hundreds of thousands of people whose employers object to it. This has the potential to affect birth control coverage for 62 million women, an astounding number of individuals given the supposedly harmless nature policy.
Following these rollbacks, HHS has now put out a broad call for public comments regarding other protections that could be eliminated to help religious entities that object to them receive HHS funding. This is incredibly dangerous. In an attempt to remove HHS requirements that “burden or interfere with their religious character or exercise,” many individuals and organizations rushed to file comments specifically urging HHS to endorse discrimination against transgender people by rolling back nondiscrimination rules.
Health care discrimination is against the law no matter what the Trump administration says, but rolling back HHS rules will promote discrimination by some providers and insurers. That’s why the American Medical Association as well as aging and faith organizations have called on HHS not to roll back the rules.
NCTE urges patients and health care providers to speak out against a license to discriminate by November 24.
Harper Jean Tobin is Director of Policy at NCTE.
Cerys Beckwith is an intern at NCTE.
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