[Federal Register Volume 90, Number 69 (Friday, April 11, 2025)]
[Rules and Regulations]
[Page 15412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-06127]
[[Page 15412]]
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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.
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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]
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