Updated: April 11 at 5:42 E.T.
Disability protections against gender dysphoria implemented via rulemaking during the Biden administration will not be supported going forward, the Department of Health and Human Services (HHS) announced April 10.
In a two-page clarification, HHS Secretary Robert F. Kennedy Jr. signed off on a rule update that declares language characterizing gender dysphoria as a disability to not be enforceable because its inclusion was in the preamble—not the regulatory text—to a final rule from May 2024.
“The Department is nonetheless concerned there has been significant confusion about the preamble language referencing gender dysphoria in the [final rule],” the update (PDF) in the Federal Register reads. “It is well-established that where, as here, the language included in the regulatory text itself is clear, statements made in the preamble to a final rule published in the Federal Register, lack the force and effect of law and are not enforceable.”
HHS said it issued the notice “out of an abundance of caution.”
The next day, Centers for Medicare and Medicaid Services (CMS) Administrator Dr. Mehmet Oz, wrote a letter (PDF) to state Medicaid agencies, telling them to not use Medicaid dollars for gender reassignment surgeries or hormone treatment in minors.
"Other advanced nations are rethinking these types of interventions – which in the U.S. can cost up to $134,000," said Oz, referring to this National Institutes of Health analysis of commercial insurance claims. "Like them, we believe psychotherapy, not life-altering drugs, or surgery, should be the first line of treatment. This isn’t about politics or stigma. It’s about protecting people from decisions they may not fully understand, and consequences they can’t undo."
Major medical groups like the American Academy of Pediatrics, the American Medical Association (AMA), the American Psychological Association all support gender-affirming care services.
The CMS letter said the United Kingdom, Sweden and Finland have implemented restrictions on puberty blockers and hormone treatments, now recommending psychotherapy, and that Medicaid regulations "prohibit federal funding for coverage of services whose purpose is to permanently render an individual incapable of reproducing."
States were also told to look over their drug utilization review program to "ensure alignment with current medical evidence."
Oz has received criticism from advocacy groups for an episode of his daytime television show, The Dr. Oz Show, where he spoke about reparative therapy, otherwise known as conversion therapy. The AMA and American Psychiatric Association condemned the practice at the time, and Oz later distanced himself from reparative therapy.
And in an interview with Delaware Valley Journal during his Senate run in 2022, he controversially said up to 85% of transgender children will "naturally, if they're not influenced, go back to their biological gender." A study in the Lancet found participants who started gender-affirming hormones continued into adulthood.
HHS reg update
The Office of Civil Rights updated Section 504 of the Rehabilitation Act of 1973 for the first time in 46 years in May. It gave guidance on how websites and apps should deliver services and stated medical treatments should not be rooted in stereotypes.
This law “excludes gender identity disorders not resulting from physical impairments from the definition of impairment,” the final rule said. HHS noted civil rights and patient advocacy organizations wanted to bolster the rule by including gender dysphoria within the regulatory text while religious organizations objected because there is not a religious exemption in Section 504, though other statutes do provide these protections.
Whether gender dysphoria is covered under Section 504 and the Americans with Disability Act has been debated in federal court. Ultimately, Biden’s HHS believed restricting care for people with gender dysphoria could violate the law.
“The department will approach gender dysphoria as it would any other disorder or condition,” the final rule said. “If a disorder or condition affects one or more body systems, or is a mental or psychological disorder, it may be considered a physical or mental impairment.”
But the final rule stopped short of including protections in the regulatory text. The Trump administration said the preamble has led to uncertainty, despite regulatory text having greater legal standing.
In March, CMS pressured hospitals to stop delivering gender-affirming care to children by sending an alert to “protect children from chemical and surgical mutilation.”
President Trump has made it a priority to change the country’s policy on transgender healthcare. He signed an executive order in January prohibiting funding of “the so-called ‘transition’ of a child from one sex to another.”
And an internal National Institutes of Health (NIH) memo shows the White House is instructing the NIH to study “regret” and “detransition” among children and adults who have transitioned, reported NPR. Regret rates for gender-affirming care are less than 1%, said Lindsey Dawson, a director for LGBTQ health policy at KFF.