Why It Matters
The Department of Health and Human Services has finalized a rule excluding gender dysphoria not resulting from a physical impairment from disability protections under Section 504 of the Rehabilitation Act in programs receiving HHS funding.
The final rule expressly excludes gender dysphoria not resulting from a physical impairment from the definition of disability under HHS's Section 504 regulations, reversing an interpretation the agency expressed in 2024. The rule takes effect Jan. 4, 2027.
The Big Picture
HHS says the rule is necessary "to resolve ambiguity introduced in the preamble to the 2024 Final Rule" on nondiscrimination on the basis of disability in programs or activities receiving federal financial assistance, published May 9, 2024. That preamble had stated that gender dysphoria did not fall within the statutory exclusions for gender identity disorders.
An April 2025 notice had already declared that preamble language unenforceable, but HHS says the notice was insufficient because confusion persisted over the distinction between preamble language and binding regulatory text, and litigation had already been filed. HHS received more than 380 comments on the proposed rule from private citizens, health care workers and institutions, educators, disability advocacy organizations, faith-based organizations, professional associations, state attorneys general and members of Congress.
The rule revises 45 C.F.R. § 84.4(g), which previously stated: "The term 'disability' does not include the terms set forth at 29 U.S.C. 705(20)(F)." The new text replaces "terms" with "conditions," identifies the statutory exclusions and adds: "For the purpose of this part, the term 'gender identity disorders not resulting from physical impairments' includes gender dysphoria not resulting from physical impairments."
Gender dysphoria resulting from a physical impairment is not categorically excluded by this provision and may qualify for protection if the applicable disability criteria are met. HHS says individuals with gender dysphoria may continue to receive protections under Title VI, Title IX and the Age Discrimination Act where applicable, and may still invoke Section 504 for other qualifying disabilities.
Broader Context
HHS says the rule is consistent with Executive Order 14192, stating it "will not impose new costs or burdens on recipients," and says it was reviewed under Executive Order 12866. HHS describes costs to recipients as negligible and not quantifiable, saying recipients will not need to purchase equipment, alter benefits, train employees or change practices.
The statutory exclusion of "gender identity disorders not resulting from physical impairments" has been in force since the Americans with Disabilities Act was enacted in 1990 and was incorporated into the Rehabilitation Act in 1992. HHS says the rule clarifies that the existing exclusion encompasses gender dysphoria rather than creating a new statutory exclusion.
HHS says it relied on the DSM-III-R, the 1987 diagnostic reference in effect when Congress enacted the exclusion, and maintains that "evolving medical classifications of gender disorders cannot change the meaning of the statutory language."
Commenters said excluding gender dysphoria would restrict discrimination protections, result in people being turned away from basic services, and contribute to poor health outcomes, including depression, anxiety, and suicide. Some also alleged that the rule was politically motivated and intended to harm transgender people. HHS rejected those allegations, saying the rule reaffirms statutory exclusions and does not eliminate protections available under other federal nondiscrimination laws.
Commenters said the rule ignores medical consensus reflected in the DSM-5, which replaced "gender identity disorder" with "gender dysphoria" as a distinct diagnosis. HHS responded that "it is beyond the scope of this final rule to regulate treatment methods or clinical standards of care."
Some commenters said the rule conflicts with the Fourth Circuit's ruling in Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022), which held that gender dysphoria is not necessarily excluded from disability protections under the Americans with Disabilities Act. HHS acknowledged that Williams is binding precedent in federal courts in Maryland, North Carolina, South Carolina, Virginia and West Virginia, but argued that the decision diverges from other court rulings and does not support the department's interpretation of the statutory exclusion.
Three states urged rescission of the entire 2024 final rule. HHS said that request was beyond the scope of this rulemaking. HHS says it "does not intend to convey any position on the legitimacy, morality, or proper treatment of gender dysphoria not resulting from physical impairments."
The Bottom Line
The rule takes effect Jan. 4, 2027. The comment period on the proposed rule is closed, and no public comment deadline remains open for this final rule.
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