Compliance FYI: Recission 1557 Guidance
Senior Compliance Attorney
On February 20, 2025, the U.S. Department of Health and Human Services (HHS), Office of Civil Rights (OCR) rescinded previous HHS guidance on gender affirming care. The previous guidance, issued in March 2022, stated that transgender medical interventions may improve physical and mental outcomes for minors.
Specifically, the 2022 guidance stated:
- Section 1557 of the Affordable Care Act (ACA) prohibits discrimination based on gender identity in federally funded health care settings;
- Gender dysphoria may qualify as a disability under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA); and
- Healthcare providers and other covered entities under HIPAA may not disclose Protected Health Information (PHI) about gender affirming care without patient authorization except in limited circumstances as required by law.
The new 2025 guidance points out that the legal basis for the 2022 guidance as it relates to Section 1557 has been called into question numerous times in the courts, specifically that “sex” discrimination does not include discrimination based on gender identity.
In addition, the 2025 guidance states that gender dysphoria most likely does not meet the definition of a “disability” for purposes of Section 504 of the Rehabilitation Act. And finally, that the 2022 Notice lacks legal basis under federal privacy laws.
As a result, the previous 2022 guidance is rescinded, and new guidance will be issued in line with the current views and policies of HHS OCR.
Key Takeaways:
The recission of previous HHS guidance signals another shift in federal policy regarding interpretation of “sex” discrimination based on gender identity under ACA Section 1557 and other federal laws. Employers should anticipate new guidance that will align with current HHS/OCR views and policies.
