Dive Brief:
- Last week, a U.S. district court ordered the HHS to restore some webpages and datasets that were removed in response to a January executive order from President Donald Trump directing agencies to remove documents that promote “gender ideology.”
- It’s a win for Doctors for America, a physician activist group, that sued the Office of Personnel Management and the HHS this winter over the executive order. Plaintiffs said providers relied on the purged data and websites to perform routine patient care tasks, and the government had cut those resources without adequate reason or notice.
- Judge John Bates agreed, writing the agencies’ attitude of “remove first and assess later” failed to consider the fallout for physicians. Still, the judge did not bar the Trump administration from taking another bite at the apple, saying his decision leaves room for the government to once again try to take down or modify documents referencing “gender ideology.”
Dive Insight:
Doctors for America estimated “hundreds or even thousands” of healthcare documents were scrubbed from the internet beginning in January, after the Trump administration gave agencies just 48 hours to review and remove materials related to “gender ideology.”
The executive order, called “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” directed agencies to use the term “sex” and not “gender” in federal policies and documents. OPM further clarified that agencies, including the HHS, had until Jan. 31 to “[t]ake down all outward facing media (websites, social media accounts, etc.) that inculcate or promote gender ideology,” according to court documents.
Plaintiffs say that purge included scores of data that only loosely touched upon gender, including information about prescribing HIV medication and contraception, and caring for patients with opioid dependency.
Doctors have had difficulty performing routine functions as a result of the loss of information, according to the plaintiffs. For example, Chicago-based physician Dr. Han Yu Stephanie Liou, who testified on behalf of the plaintiffs, told the court she lost access to a range of materials previously published by the Centers for Disease Control and Prevention, including guidance on prescribing HIV prevention medication and contraception options.
While she can pull those materials together herself from other sources, doing so takes time, Liou said. Scrounging for information means seeing fewer patients.
Bates said that, although the HHS and OPM were within their right to uphold Trump’s executive order, the agency’s “extreme” approach — including removing whole pages with minimal references to “gender ideology” and giving tight deadlines to departments to remove data — was inappropriate.
“...Common sense dictates there are numerous ways to remove an offending word or statement without rescinding the entire web page. Why did the agencies choose this route?” Bates wrote in his ruling.
“The government is free to say what it wants, including about ‘gender ideology,’” Bates wrote. “But in taking action, it must abide by the bounds of the authority and the procedures that Congress has prescribed … and the government failed to do so here.”
Still, the ruling offers the Trump administration a path to scrub guidance it finds offensive. Although Bates vacated guidance instructing webpages be taken down, he “will not prevent the defendants from heading back to the drawing board and attempting to craft a lawful policy with similar objectives.”
The Trump administration has won recent lawsuits challenging guidance on “gender ideology” and gender-affirming care.
Last month, the Supreme Court upheld Tennessee’s ban on gender-affirming care for minors. The decision is likely to have ripple effects and spur further states to impose restrictions, according to experts.
The Trump administration has also launched probes into hospitals that provide gender-affirming care for minors and escalated pressure on providers to end the services, which include hormone therapy and surgeries. Trump may also be weighing cutting financial support for hospitals that provide gender-affirming care, regardless of state law, according to a report from the Wall Street Journal.
Since the beginning of the year, multiple hospitals have reversed course on gender-affirming care for minors, with Children’s Healthcare of Atlanta, Penn State Health, UPMC and Lurie Children’s Hospital of Chicago ending services.
