In the wake of an explosive anti-transgender memo leaked from the Department of Health and Human Services and published by the New York Times, LGBT advocates have questions: Who proposed that “sex” be defined by original birth certificate? Was there any pushback? Who, if anyone, was consulted?
But under an administration that has not exactly been forthcoming on LGBT issues, the only way to get answers might be through Freedom of Information Act requests, the Human Rights Campaign says.
On Monday, HRC filed a FOIA request asking HHS for all records pertaining to the memo—adding to a number of FOIA requests that the LGBT rights group has issued to the Trump administration so far.
“What we’re attempting to do here is get better information about how the [Trump] administration came to its conclusion that it was permissible under federal law to define ‘sex’ in a way that it’s never been defined before,” HRC Legal Director Sarah Warbelow told The Daily Beast. “We want to know who’s behind this effort to so narrowly define ‘sex.’”
Information on this topic has indeed been scant so far: The original New York Times report on the memo noted that HHS Office for Civil Rights director Roger Severino “declined to answer detailed questions about the memo or his role” in Trump administration conversations about the definition of “sex” under federal civil rights law.
In response to new questions from The Daily Beast about the memo and the FOIA request, HHS spokesperson Caitlin Oakley issued a statement addressed to “those who continue to report on the misleading New York Times story.”
The statement is identical to those previously issued by the agency in response to the New York Times report, saying that HHS does not “comment on alleged, leaked documents that purport to indicate the status of deliberations or the focus of the department,” and pointing to a 2016 injunction on an Obama administration rule regarding anti-transgender discrimination in health care contexts.
Warbelow says that it may take some time for this and other FOIA requests to be fulfilled—feet-dragging, she told The Daily Beast, is “a very common tactic” that’s used “frankly, to some extent, by every administration”—but “ultimately we ought to be able to have a clearer picture based on the FOIA of what is happening with respect to this administration.”
In addition to this FOIA request, HRC has also asked the Department of Justice for more information about the Religious Liberty Task Force announced to much criticism by Attorney General Jeff Sessions this July—a move widely perceived as a political gift to anti-LGBT groups that have fostered relationships with the Trump administration. That FOIA was sent in August—and there have been no updates so far, Warbelow confirmed.
In the months since, it has been unclear what shape the Religious Liberty Task Force is taking.
On Monday, as NBC News reported, Sessions said in a speech to the Federalist Society that a 2017 Supreme Court ruling on state denial of financial aid to churches had inspired him to direct the Task Force to “examine … whether there are other instances in which this kind of discrimination is occurring at the federal level.”
Many of HRC’s original questions, however, remain: Who is on it and what, exactly, does it do?
In response to questions from The Daily Beast about the Religious Liberty Task Force, a DOJ official said that it consisted of “representatives” from several “components” of the department, including “the Office of the Deputy Attorney General, the Civil Division, the Civil Rights Division” and others.
As for its current activities, the official said that the task force is “currently reviewing whether the executive agencies are implementing the legal guidance on religious liberty the Attorney General issued last Fall”— a reference to an October 2017 memo from Sessions outlining 20 principles of religious liberty.
HRC, as the organization noted in a blog post announcing the DOJ FOIA request earlier this year, has also been trying to determine whether the creation of the Religious Liberty Task Force was “proposed” by anti-LGBT groups. Asked whether it was suggested by external groups, the DOJ official told The Daily Beast, “No. This was 100% an internal decision.”
“When President Trump was campaigning for office, he said that protecting religious liberty would be a top priority of his administration,” the official said. “Shortly after he took office, he directed Attorney General Sessions to issue legal guidance to ensure that all executive agencies would faithfully apply the federal laws that protect religious liberty. The Attorney General’s guidance lays out twenty fundamental principles that the Constitution and federal statutes require of the Executive Branch. The creation of a taskforce to ensure the implementation of the guidance was a logical next step.”
The chief limitation of the FOIA strategy, Warbelow says, is that any public information uncovered by a request “can be partially redacted, particularly when it’s between certain individuals within the administration.”
That means LGBT advocates may not learn as much as they would like about interagency communications—or about the White House’s internal positions.
Much more likely is that the LGBT community would learn which, if any, groups the administration consulted before, say, producing draft language that would erase transgender and intersex people from the definition of “sex.”
“They are not supposed to withhold any information with regard to external communications,” Warbelow added. “So, if an administration is communicating with [an organization] who is arguing that this is how they would like to see the administration interpreting the term ‘sex,’ that is something that should be released in an FOIA—and if they decline to do so, they could be sued over it.”
Even though Trump administration officials are theoretically aware that their external communications are potentially subject to the FOIA—and even if they are primarily talking to anti-LGBT groups in closed-door meetings—it’s still likely, Warbelow says, that they would be leaving an informative paper trail.
“If you’re an attorney, for example, who is trying to pitch to an administration that your view of the law is consistent with how the administration should act, you are going to need to provide documentation, you’re going to need to request meetings with the administration,” she explained. “So all of that information does create the beginnings of a trail of information—even if some of what you want to discuss with the administration official might happen in a non-public or non-FOIA-able way.”
The potential issue is not—as Warbelow clarified—that the Trump administration would be talking to outside groups at all, but rather that they would be “only meaningfully consulting with anti-LGBTQ forces” in the formulation of policy.
These are not the only LGBT-related FOIA requests filed to date. Liberal organization American Oversight filed an FOIA request over the transgender troop ban, for example, that resulted in a BuzzFeed report showing that Pentagon officials were surprised and confused by the president’s July 26, 2017 tweets on the topic.
BuzzFeed also sued the Justice Department in October, alleging that the DOJ had violated the FOIA by not producing requested information about the Task Force.
Warbelow confirmed to The Daily Beast that HRC has “a number of FOIAs pending on a variety of topics,” including some pertaining to the exemptions that some religious universities have sought from federal civil rights law in order to maintain anti-LGBT policies.
Ultimately, though, it could be months or even years before a full picture of the Trump administration’s anti-LGBT efforts begins to come into focus. FOIA requests help clarify where the attacks are coming from—but they can’t stop them altogether.
“Clearly,” Warbelow said, “this is going to be an ongoing effort as the administration continues to put forth efforts to undermine the rights of LGBTQ people. I wish I could say that this is the end of the line—but I don’t think any of us are naïve enough to think the administration—in cahoots with organizations that have dedicated their mission to undermining LGBTQ people’s rights—won’t continue to find new ways to try to circumvent our nation’s civil rights laws.”