On February 20, 2025, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued a rescission of the “HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy” issued March 2, 2022. This rescission is effective immediately.
Who this applies to:
Employers of any size sponsoring a medical plan
Go Deeper:
The 2022 guidance had stated:
- Restrictions on gender-affirming care “likely violates Section 1557”
- Gender dysphoria might qualify as a disability, so restrictions on gender dysphoria treatment “may…violate Section 504 and Title II of the ADA”
- Disclosure of protected health information (PHI) about gender affirming care is subject to additional restrictions
These provisions are immediately rescinded, largely due to legal challenges that have prevailed and the new administration wanting to move forward with new guidance to be issued in the near future. Executive orders and this rescission have indicated intent to issue rules clarifying §1557 does not consider restrictions on gender dysphoria treatment to be discrimination on the basis of sex, that gender dysphoria is not a disability, and that HIPAA law allows the disclosure of PHI without the individual’s express authorization when such disclosure is required by another law and complies with that law’s requirements.
However, this notice does not discuss the application of Title VII civil rights protections, and the 11th Circuit did determine last year in Lange v. Houston County, Georgia, that a health plan restricting gender dysphoria treatment was discriminating on the basis of sex.
Employers wanting to impose restrictions on gender dysphoria treatment may want to discuss with counsel while waiting for updated laws or regulations.
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