90 FR 69 pg. 15412 - Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance; Clarification
Type: RULEVolume: 90Number: 69Page: 15412
Page: 15412FR document: [FR Doc. 2025-06127 Filed 4-10-25; 8:45 am]
Agency: Health and Human Services Department
Official PDF Version: PDF Version
[top]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
45 CFR Part 84
Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance; Clarification
AGENCY:
U.S. Department of Health and Human Services.
ACTION:
Clarification.
SUMMARY:
The Department of Health and Human Services (HHS or the Department) is issuing this document to clarify the non-enforceability of certain language that was included in the preamble to-but not the regulatory text of-the May 9, 2024, final rule titled "Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance." Language in the preamble concerning gender dysphoria, which language is not included in the regulatory text, does not have the force or effect of law. Therefore, it cannot be enforced.
DATES:
April 11, 2025.
FOR FURTHER INFORMATION CONTACT:
Sean R. Keveney, Acting General Counsel, 202-690-7741.
SUPPLEMENTARY INFORMATION:
On May 9, 2024, HHS issued a final rule entitled "Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance," 89 FR 40066 ("2024 Section 504 Rule"). A portion of the preamble of that rule addresses whether "gender dysphoria can be a disability under section 504 [of the Rehabilitation Act of 1973] and the [American with Disabilities Act]." Id. at 40068-69. This preamble language does not have the force or effect of law; it cannot be enforced.
The regulatory text in the final rule does not say that gender dysphoria is a disability, see id. at 40180-82 (revising 45 CFR 84.4, which defines "disability"). The regulatory text incorporates and is consistent with the exclusions set forth in 29 U.S.C. 705(20)(F), which provides, inter alia, that "`an individual with a disability' does not include an individual on the basis of-. . . [ ] gender identity disorders not resulting from physical impairments, . . . ." 45 CFR 84.4(g).
The Department is nonetheless concerned there has been significant confusion about the preamble language referencing gender dysphoria in the 2024 Section 504 Rule. 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. See Kisor v. Wilkie, 588 U.S. 558, 621 (2019) ("[t]he text of the regulation is treated as the law, and the agency's policy judgment has the force of law only insofar as it is embodied in the regulatory text.") (Gorsuch, J., concurring) (emphases in original); see also Wyeth v. Levine, 555 U.S. 555, 575 (2009) (language in preamble to regulation did not give rise to preemption: while "an agency regulation with the force of law can pre-empt conflicting state requirements," "[w]e are faced with no such regulation in this case . . . ."); AT&T Corp. v. Fed. Commc'ns Comm'n, 970 F.3d 344, 350 (D.C. Cir. 2020) ((holding that where "the regulation itself is clear" courts "need not evaluate either the regulatory preamble or any other document that itself lacks the force and effect of law" (quotation marks omitted)). Nevertheless, the Department out of an abundance of caution is issuing this notice to clarify and emphasize that such language is not, and never was, enforceable.
Robert F. Kennedy, Jr.,
Secretary, Department of Health and Human Services.
[FR Doc. 2025-06127 Filed 4-10-25; 8:45 am]
BILLING CODE 4150-26-P