HHS releases transgender-related records after being sued

HHS releases transgender-related records after being sued
Dept of Health and Human Services (HHS) HQ; Hubert H. Humphrey Bldg in Washington, D.C. Wikipedia: By 'Matthew G. Bisanz, CC BY-SA 3.0, Link

On February 28, 2023, this blog and the Bader Family Foundation submitted a Freedom of Information Act request to the Department of Health and Human Services, asking it for eight categories of records, communications and emails containing the words “transgender,” “gender-affirming,” or “gender identity.”

Given the breadth of the categories, it was obvious that the agency had thousands of pages of records covered by our FOIA request. But amazingly, the agency claimed that it had no responsive records at all, in a March 22, 2023 letter that revealed a lackadaisical attitude toward its legal obligation to conduct a diligent search for responsive records. In response, we submitted an administrative appeal, asking the government to conduct a more thorough search. On September 14, 2023, the FOIA appeals office ordered “additional searches” for responsive records. But two months went by and no records were provided. So we sued HHS in federal court on November 28, to force it to turn over the records sought by our FOIA request. This year, HHS has released about a thousand pages of records so far, in monthly installments (although the files are too big to post on the internet in their entirety).

The records show that HHS, despite having a budget of roughly two trillion dollars and over 80,000 employees, routinely relies on outside consultants to perform basic tasks — such as the progressive non-profit Child Trends, and the consulting behemoth Booz Allen Hamilton.

The batch of records HHS produced on April 1, 2024 contains an email saying, “My name is Jennifer Anderson and I work for Booz Allen Hamilton, a consulting company that is partnering with the [HHS] Office of Population Affairs to create a national strategic plan for adolescent health.” One would have thought that a government agency could create its own national strategic plan, even if it needed consultants to carry out that plan. (That email thread is found at this link, which contains the first 100 pages of records produced by HHS, of which the first ten pages are about Booz Allen Hamilton’s work on the national strategic plan, and page 5 contains the email quoted above.)

As government spending has rapidly increased over the last several years, Booz Allen Hamilton has been a big beneficiary, reported WTOP this January:

McLean, Virginia-based government consultant Booz Allen Hamilton reported quarterly profits that more than quadrupled from a year ago in congruence with a growing demand from the Defense Department and other government agencies for its consulting services.

The company also continued to add thousands of consultants and other employees to its payroll.

Booz Allen had a fiscal third quarter net income of $146.6 million, up from $31 million in the same quarter a year ago. It had a fiscal third quarter revenue of almost $2.6 billion, up 12.9%.

Booz Allen ended the year with almost 34,000 employees globally, adding 2,700 jobs to its total head count in 2023, or an increase of 8.6%. About 700 of those new jobs were added in the final quarter of the year.

Booz Allen is one of the largest employers in the D.C. region, and the largest government IT contractor, with approximately 14,000 consultants and other employees. It is one of the five largest publicly traded companies in the D.C. region.

The government’s growing use of such consultants is a bad thing, not a good thing. As economist Noah Smith notes, it is less — rather than more — efficient to have government contractors do government planning, rather than civil servants do it. For example,

when it comes to transportation planning, a huge problem is the amount that governments have come to rely on consultants. The Transit Cost Project has been looking into the question of why it costs so much more to build each mile of train in the U.S. than in other rich countries (most of which have stronger unions). Their big report, released earlier this year, found that state and local governments’ excessive reliance on outside consultants rather than in-house bureaucratic expertise was a huge driver of excess cost. Here are some excerpts from a great writeup by Henry Grabar:

[M]any of the [transit cost] problems can be traced to a larger philosophy: outsourcing government expertise to a retainer of consultants…

For example, when the Massachusetts Bay Transportation Authority got to work on the Green Line Extension, the agency only had a half-dozen full-time employees managing the largest capital project the MBTA had ever undertaken. On New York’s Second Avenue subway, the most expensive mile of subway ever built, consultant contracts were more than 20 percent of construction costs—more than double what’s standard in France or Italy. By 2011, the MTA had trimmed its in-house capital projects management group of 1,600 full-time employees (circa 1990) to just 124, tasked with steering $20 billion in investment. Perhaps the most notorious case in this business is the debacle of the California High-Speed Rail project, which in its early years had a tiny full-time staff managing hundreds of millions of dollars in consulting contracts

It’s that lack of institutional know-how, of which consultants are both a symptom and a cause, that really hampers projects…It means staff are overwhelmed by change orders as projects evolve. In the case of New York’s Second Avenue subway, the lack of a powerful, effective team of civil servants may also explain some inexplicable conflicts and mistakes: misunderstandings and feuds with local agencies, hugely overbuilt stations, and so little standardization that the escalators in the three new stops were built by three different companies.

Would replacing some of these consultants with government bureaucrats really lower costs? A recent paper by Zachary Liscow, William Nober, and Cailin Slattery suggests that it would:

[W]e find evidence that state capacity correlates inversely with costs in a several ways. States with (perceived) higher quality DOT employees have lower costs. A state with a neutral rating has almost 30% higher costs per mile than one that rates the DOT employees as “moderately high quality”, all else equal. Consistent with the capacity hypothesis, states that flag concerns about consultant costs have higher costs. States where contractors and procurement officials expect more change orders have significantly higher costs. Frequent change orders could directly lead to higher costs through delays and costly renegotiation; they could also be a downstream symptom of poor administrative capacity at a state DOT—many contractors reference poor-quality project plans made by third-party consultants. Moreover, when we measure capacity using external data we show that states with higher DOT capacity have lower infrastructure costs. A one standard deviation increase in capacity is correlated with 16% lower costs.

The progressive consulting firm Child Trends has played a key role in shaping HHS policy. In March 2022, the Department of Health and Human Services issued a document promoting gender transitions for young people, including “puberty blockers” “during puberty”, “hormone therapy” from “early adolescence onward”, and “gender-affirming surgery” (such as removal of breasts and testicles) either in “adulthood or case-by-case in adolescence.”

Strangely, this HHS guidance document, titled “Gender Affirming Care in Young People,” was issued not by HHS agencies that have expertise in transgender issues (such as the Food and Drug Administration, which regulates drugs such as puberty blockers), but rather by the Office of Population Affairs, which deals with family planning, teenage pregnancy, and adoption. The FDA has warned that the puberty blockers used by minors in gender transitions can have major side effects, such as brain swelling and permanent vision loss.

In Newsweek, former FDA official David Gortler expressed concern about this, and asked why the Office of Population Affairs was “even commenting on gender transition treatments….As a former senior executive FDA drug safety official, I have to wonder why my 20,000-plus former colleagues at the FDA are not speaking out after being circumvented on transgender clinical pharmacology recommendations by an obscure, obviously unqualified HHS office.”

I submitted a Freedom of Information Act request about this to HHS on behalf of this blog and the Bader Family Foundation, and HHS produced documents indicating that its “Gender Affirming Care” recommendations were drafted without the FDA’s input.

Instead, they were posted and publicized by Child Trends, a non-profit that receives funding from progressive LGBTQ advocacy foundations to promote “social justice” (one of its funders does so to “Push Boundaries, Make Change”).

HHS seems to have said pretty much whatever Child Trends wanted it to say, rather than relying on any neutral expert at the FDA or anywhere else for what recommendations to make about medical care for gender-nonconforming youth. The documents released by HHS in response to the FOIA request didn’t reflect any independent medical expertise from HHS, although it is hard to be certain because some parts of the documents are redacted by HHS, which claims they are exempt from disclosure under FOIA’s Exemption 5 (HHS appeared to be relying on the deliberative-process privilege). You can view the documents HHS released at this link, and HHS’s letter enclosing the documents at this link.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at hfb138@yahoo.com


For your convenience, you may leave commments below using Disqus. If Disqus is not appearing for you, please disable AdBlock to leave a comment.