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This proposed rule would revise 45 CFR Part 84 under section 504 of the Rehabilitation Act of 1973 to address discrimination on the basis of disability in programs and activities funded by HHS. HHS revised 45 CFR Part 84 under Section 504 in May of 2024 (see Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance (RIN 0945-AA15)) and now intends to clarify existing statutory limitations on the definition of disability as it applies to gender identity disorders and/or gender dysphoria.

Statement of Need:

In order to further this Administration’s priorities and clear up confusion surrounding non-binding preamble language, HHS will need to issue rulemaking on disability under Section 504. HHS has issued a Federal Register notice that the preamble statements lack the force and effect of law and are not enforceable. See Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance; Clarification, 90 FR 15412 (Apr. 11, 2025). However, because preamble discussions are often persuasive authority, HHS needs to issue a rule clarifying that the 2024 Section 504 Final Rule preamble language on gender dysphoria did not constitute the best reading of 29 U.S.C. 705(20)(F)(i) which excludes gender identity disorders from the term disability. The Department has already faced legal consequences [1] for the language and will need to clear up confusion among recipients and members of the public. Regulatory action is needed to address litigation, enforce the Administration’s priorities, and recognize the best reading of the underlying statute.

[1] See Texas v. Becerra , No. 5:24-cv-00225 (N.D. Tex.); Rapides Parish Sch. Bd. v. U.S. Dep’t of Health & Hum. Servs., et al , 1:25-cv-70 (W.D. La.).

Summary of the Legal Basis:

Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, gives HHS the authority to promulgate regulations prohibiting discrimination on the basis of disability in programs and activities conducted by the Department. The substantive authority for the definition and exclusions includes 29 U.S.C. 705 (20)(F) There are currently no requirements due to statute or court order.

Alternatives:

OCR will consider as alternative approaches to the proposed rulemaking:

A. Not engaging in rulemaking and maintaining the status quo.

B. Attempt an Interim Final Rule (IFR) instead of a Notice of Proposed Rulemaking (NPRM).

Anticipated Costs and Benefits:

Any costs would be negligible given that this is a clarification of one limited aspect of the definition of disability as it relates to bringing claims for civil rights violations. OCR does not anticipate that recipients will alter their practices based on this clarification, especially since this clarification will eliminate any confusion that may have been brought about by the Preamble to 2024 Section 504 Final Rule. Benefits would be largely unquantifiable and rest largely on enforcing Administration priorities.

Risks:

The main risk is for further litigation. At present, there is only a single federal appeals court decision, Williams v. Kincaid , [1] that addresses, on the merits, whether gender dysphoria may be considered a disability under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. That decision comes to the opposite conclusion of this rulemaking, finding that gender dysphoria is not sufficiently similar to gender identity disorders, which are expressly excluded from the definition of disability and individual with a disability under the ADA and/or Section 504. While many district courts have come to the opposite conclusion of Williams, and OCR believes that the best reading of the underlying statute essentially is that gender identity disorder encompasses gender dysphoria, the Fourth Circuit opinion cuts against this rulemaking. OCR’s approach is consistent with a recent statement of interest filed by the Department of Justice in a private lawsuit involving an ADA claim on the same issue.

[1] 45 F.4th 759 (4th Cir. 2022), cert. denied , 600 U.S.___ (2023).