The U.S. Department of Health & Human Services (HHS) has issued a memorandum rescinding its 2022 guidance entitled "Rescission of 'HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy'." The rescission cites Section 5(b) of Executive Order 14187, "Protecting Children from Chemical and Surgical Mutilation," as justification. The rescission of the 2022 HHS guidance is effective immediately.
The 2022 guidance stated that Section 1557 of the Affordable Care Act (ACA) protects individuals' rights to access health programs and activities receiving federal financial assistance without discrimination based on sex or gender identity. As a result, the guidance warned that state laws restricting providers' ability to provide or prescribe gender-affirming care or reporting the care to state authorities might violate the ACA, HIPAA, and other federal laws.
HHS issued final regulations in 2024 under the ACA, strengthening its position that sex discrimination includes discrimination based on gender identity. However, court decisions have since blocked some of the regulations relating to that issue. A Mississippi court issued a nationwide injunction staying relevant portions of the ACA regulations, and a Texas court blocked all the regulations in Texas and Montana. Both courts refused to defer to the HHS interpretation of sex discrimination as inclusive of gender identity discrimination, citing the U.S. Supreme Court decision in Loper Bright.
The memorandum states that covered entities should not rely on the 2022 guidance, as courts have questioned its legal basis, and it no longer reflects the views and policies of HHS.
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