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On April 11, 2025, the Trump Department of Health and Human Services (HHS) issued a “clarification” document “out of an abundance of caution” to “clarify and emphasize” that gender dysphoria is not a protected disability under federal disability discrimination regulations.
The clarification was in response to “significant confusion” over a Biden-era disability discrimination rule that was finalized in May 2024. The rule’s preamble stated that gender dysphoria can be a protected disability under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA). These laws collectively prohibit discrimination for qualifying disabilities in federally funded programs and activities, employment, public programs and services, private business, and schools. Under both laws, “gender identity disorders not resulting from physical impairments” are excluded from the definition of disability.
There is an ongoing debate over whether gender dysphoria falls under the laws’ exclusions. Several federal district courts have held that gender dysphoria is gender identity disorder and thus not a qualifying disability. Other district courts and the Fourth Circuit that have held that gender dysphoria is not a gender identity disorder, results from a physical impairment, or both. The Biden administration agreed with the latter. (To learn more about the arguments over whether gender dysphoria is a protected disability, listen to my discussion with Greg Baylor of Alliance Defending Freedom about the legal landscape for the Federalist Society’s Fourth Branch Podcast here.)
After the Biden rule was finalized, a coalition of 17 states and a Louisiana school board sued HHS. As the states argued in their complaint, the rule “upends decades of established federal disability law by adding ‘gender dysphoria’ to the definition of ‘disability’” under Section 504 and the ADA. After the administration transition, the Trump HHS told the court it was reevaluating its position.
As revealed in the clarification document, the Trump HHS is taking the position that the discussion about gender dysphoria in the Biden rule’s preamble “does not have the force or effect of law” and “is not, and never was, enforceable.”
As HHS notes, the regulatory text in the final rule, which is enforceable, “incorporates and is consistent with” the statutes’ gender identity disorder exclusions and does not say that gender dysphoria is a disability under Section 504 or the ADA.
