Trump Administration Rescinds Protections Against Discrimination on the Basis of Gender Identity Under Health Care Nondiscrimination Laws

Since his inauguration on January 20, 2025, President Trump has issued a flurry of executive orders (“EOs”). Three of these EOs rescind Biden Administration guidance extending the nondiscrimination protections under Section 1557 of the Affordable Care Act (the “ACA”) to discrimination based on gender identity.[1] These protections have had a tumultuous history since Section 1557 was enacted in 2010, with each administration reversing course from the last. The new administration has reverted to the position taken in President Trump’s last presidency – that the protections against discrimination “on the basis of sex” do not apply to gender identity.

History of Section 1557’s Protections Against Discrimination on the Basis of Gender Identity

Enacted in 2010 as part of the ACA, Section 1557 is aimed at ensuring that individuals are not excluded from participation in, denied the benefit of, or subjected to discrimination under any health program or activity that receives federal financial assistance. It does so by incorporating and building on long-standing and familiar federal civil rights laws. Section 1557’s prohibition against sex discrimination comes from Title IX of the Education Amendments of 1972. 

The U.S. Department of Health and Human Services (“HHS”) did not issue implementing regulations for Section 1557 until 2016, towards the end of the Obama Administration. In these 2016 regulations, discrimination on the basis of gender identity, as well as discrimination on the basis of termination of pregnancy, was included within the prohibition against sex discrimination.[2] This rule was soon challenged in the Northern District of Texas in Franciscan Alliance v. Azar by religiously-affiliated healthcare providers and states, resulting in an October 2019 holding that the regulations violated the Administrative Procedures Act and the Religious Freedom Restoration Act.[3] This decision vacated the inclusion of gender identity and termination of pregnancy in the definition of sex discrimination. In June 2020, regulations from the first Trump Administration eliminated language interpreting sex discrimination as including discrimination on the basis of gender identity or termination of pregnancy, in line with the court’s holding in Franciscan Alliance. 

Shortly after, the newly inaugurated President Biden sought to reinstate the protections relating to gender identity that had existed prior to 2019. In January 2021, he issued an EO titled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” directing heads of federal agencies to review all agency actions, regulations, and guidance relating to laws prohibiting sex discrimination to ensure that such agency actions were compliant with the Biden Administration’s policy to “prevent and combat discrimination on the basis of gender identity or sexual orientation.” In response, in March 2021, the Department of Justice (“DOJ”) issued guidance instructing federal agencies to apply Bostock v. Clayton County, Georgia,[4] a 2020 sex-based employment discrimination case in which the Supreme Court held that discrimination based on sex encompasses sexual orientation and gender identity, to Title IX.[5] In May 2021, HHS issued a notice stating that it would interpret Section 1557’s prohibition on sex discrimination to include discrimination on the basis of gender identity consistent with Bostock. 

A year later, in May 2022, the HHS Office for Civil Rights (“HHS OCR”) issued a memo titled “HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy,” emphasizing HHS’s position that “gender affirming care for minors, when medically appropriate and necessary, improves their physical and mental health.” The memo also confirmed that HHS OCR would be “investigating and, where appropriate, enforcing Section 1557 of the Affordable Care Act cases involving discrimination on the basis of sexual orientation and gender identity in accordance with all applicable law.”[6]

Finally, in May 2024, HHS issued a final rule that codified that entities subject to Section 1557 cannot deny or limit services based on gender identity or sex assigned at birth, adopt any policy of treating individuals differently on the basis of sex, including if it prevents an individual from engaging in a health program consistent with the individual’s gender identity, or deny or limit services sought for gender transition or other gender-affirming care based on sex assigned at birth or gender identity.^[7] However, the gender identity protections in the May 2024 Section 1557 regulations were quickly stayed nationwide.^[8]

Trump Administration Changes

On January 20, 2025, President Trump rescinded President Biden’s January 2021 EO titled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” He also rescinded the March 2021 DOJ memo stating that DOJ would apply the Supreme Court’s holding in Bostock in the context of Title IX and, accordingly, Section 1557. These actions, and others taken in the first few days of the administration, make evident that the Trump Administration will not be construing the protections in Section 1557 to extend to gender identity.

Further, on January 28, 2025, President Trump issued another EO focused on gender-affirming care for children, defined as individuals under 19 years of age. Among other things, the EO:

• Directed agencies to stop relying on guidance from the World Professional Association for Transgender Health (“WPATH”);
• Directed the Secretary of HHS to “take all appropriate actions to end the chemical and surgical mutilation of children, including regulatory and sub-regulatory actions,” with specific reference to Section 1557 among other laws;
• Directed the Director of the Office of Personnel Management to exclude coverage for “pediatric transgender surgeries or hormone treatments” for the Federal Employee Health Benefits and Postal Service Health Benefits programs; and
• Directed the Attorney General to:
  • “[P]rioritize enforcement of protections against female genital mutilation;”
  • “[P]rioritize investigations . . . to end deception of consumers, fraud, and violations of the Food, Drug, and Cosmetic Act by any entity that may be misleading the public about long-term side effects of chemical and surgical mutilation;”
  • Work with Congress to “draft, propose, and promote legislation to enact a private right of action for children and the parents of children” who have received gender affirming care and that this legislation “should include a lengthy statute of limitations;” and
  • “[P]rioritize investigations” into states that “facilitate stripping custody from parents” who prevent their children from receiving gender affirming care.

The EO also rescinded the March 2022 HHS OCR guidance memo titled “HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy.”

We expect to see further guidance in the coming months, as well as new rulemaking, to align the positions of HHS and DOJ with those expressed in the EOs and by the first Trump Administration. The new guidance and rulemaking will likely revise many interpretations of Section 1557, beyond those discussed here relating to gender identity. 

The new guidance may also have an impact in cases involving the interpretation of Section 1557. There has been a recent trend in courts enjoining health care coverage exclusions for gender-affirming care as sex-based discrimination in violation of Section 1557.[9] Courts have continued to find that Section 1557 prohibits discrimination based on gender identity through reference to the precedent set in Bostock even while Biden Administration regulations extending Section 1557 to gender identity have been stayed.[10] It is unclear if Courts may reverse course and become reluctant to interpret Section 1557 to protect gender identity based on the EOs or new interpretive regulations. 

We continue to wait for the Supreme Court’s decision in U.S. v. Skrmetti,[11] which concerns the constitutionality of Tennessee’s ban on gender-affirming care for transgender minors. Plaintiffs in this matter argue that the state ban violates Section 1557, among constitutional protections, and whether the Court will apply Bostock to Section 1557 is critical to understanding how courts will think about the sex-related protections in Section 1557 and Title IX going forward.

If you need assistance in addressing any gender related care issues, please contact the authors of this blog or your usual Crowell & Moring point of contact.