Comments From Richard Besser, MD, on the HHS Office for Civil Rights Proposed Rule on Nondiscrimination on the Basis of Disability

The following comments were submitted by Richard Besser, MD, Robert Wood Johnson Foundation (hereinafter “RWJF” or “the Foundation”) President and CEO, in response to the U.S. Department of Health and Human Services (HHS) Office for Civil Rights Proposed Rule on Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance (hereinafter “the Proposed Rule”), published in the Federal Register on December 19, 2025.

RWJF is a leading national philanthropy dedicated to taking bold leaps to transform health in our lifetime. Through funding, convening, advocacy, and evidence-building, we work side-by-side with communities, practitioners, and institutions to get to health equity faster and pave the way together to a future where health is no longer a privilege, but a right.

Our comments are grounded in the perspectives and expertise of our grantees, who include organizations seeking to ensure that everyone has access to quality healthcare and health services.

RWJF strongly opposes the proposed revision of the Section 504 regulations for three reasons. First, gender dysphoria (GD) may be a disability under the plain language of 504. Second, the Department’s proposed exclusion of GD is incompatible with Section 504’s definitional framework. Third, the Proposed Rule is part of a coordinated campaign to target the transgender community. We urge HHS to rescind the Proposed Rule.

I.          Gender dysphoria may be a disability for 504 purposes

GD is a health condition defined by the American Psychiatric Association (APA).¹ As defined by the APA, GD for adolescents and adults is a marked incongruence between one’s experienced/expressed gender and their assigned gender, lasting at least 6 months, associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.²

For purposes for Section 504, an “individual with a disability” means an individual who has “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment . . . “³  A condition is considered a “physical or mental impairment” when it can affect any bodily system or is a mental or psychological condition. Here, there is no question that GD is a “physical or mental impairment” within the meaning of Section 504, since it is a diagnosed psychological condition, and in some cases, it may affect bodily systems.

In addition, GD can substantially limit one or more major life activities. While such an impairment is not a necessary part of the GD diagnosis, the diagnostic criteria make plain that the condition may be associated with “impairment in social, occupational, or other important areas of functioning.”⁴ In cases where a person’s GD creates an impairment with a major life activity, the person’s GD should be considered a qualifying disability for purposes of Section 504.

Instead of engaging in this analysis, however, the Proposed Rule argues that GD is statutorily excluded because Section 504 excludes “gender identity disorder” from the definition of disability.⁵ However, GD is not the same thing as gender identity disorder (GID).⁶ At the time the statutory exclusion of GID was codified, the medical community used the terms GID and “transsexualism” to refer simply to a “discomfort and sense of inappropriateness” between an individual’s birth sex and their true gender.⁷ Given the breadth of the diagnostic criteria, nearly all transgender and gender non-conforming people qualified for a GID diagnosis. In contrast, GD refers to the “clinically significant distress or impairment” as a result of the incongruence between a person’s birth sex and true gender.⁸ GD is not necessarily experienced by all transgender and non-binary individuals, but a transgender or non-binary person may receive a diagnosis of GD if they experience symptoms of significant distress or functional limitations as a result of incongruence between their birth sex and true gender. Notably, no one can currently receive a diagnosis of transsexualism or GID because the medical community has acknowledged the lack of scientific support for these diagnoses, and therefore these diagnoses no longer exist.⁹

The plain statutory text of the Rehabilitation Act excludes GID, not GD. The Department acknowledges that at the time the statutory exclusion was added to the Rehabilitation Act, marked psychological distress was not required to make a GID diagnosis.¹⁰ Indeed, it was not until the adoption of the GD diagnosis in the DSM-5 that the diagnostic criteria focused on “distress/dysphoria as the clinical problem and not on identity per se.”¹¹ The criterion pertaining to distress or impairment was specifically added to the diagnostic criteria “in response to critics who were concerned that previous DSM-diagnoses were overly inclusive.”¹² Thus, GD is not merely GID by another name but rather is a clinically distinct condition with distinguishing diagnostic criteria.

In 2022, the only circuit court that considered this matter to date ruled in Williams v. Kincaid that gender dysphoria is different from gender identity disorder and thus could be a disability.¹³ Because GID is not GD, and the statutory text only excludes GID, Section 504 does not expressly exclude GD from the definition of disability. GD may constitute a disability under 504.

II.         The Proposed exclusion of gender dysphoria as a disability is incompatible with Section 504’s definitional framework and Congressional intent

Section 504 of the Rehabilitation Act of 1973 is one of the most powerful pieces of disability rights legislation in our nation’s history. Over 50 years ago, Congress decided that “no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .”¹⁴ Excluding people with a specific medical condition such as gender dysphoria threatens to erode the rights of all disabled people, as it is wholly inconsistent with both the definitional framework of Section 504 and spirit of the law.

As noted above, Section 504 uses a broad definition of disability.¹⁵ The statute does not include a list of specific disorders that may constitute a disability. Instead, it defines disability as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”¹⁶ A physical or mental impairment, in turn, is further defined as “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems . . . or [a]ny mental or psychological disorder such as intellectual disability, organic brain syndrome, mental health condition, and specific learning disability” (emphasis supplied).¹⁷

Furthermore, the ADA, which is incorporated by reference into Section 504, expressly states that the “definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.”¹⁸ Section 504 regulations also state that “the definition of ‘disability’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of section 504.”¹⁹

Section 504 was designed to accommodate changing medical understandings of physical impairments and mental or psychological disorders. By design, the statute and regulations do not contain a definitive list of physical impairments or mental impairments that may constitute a disability. As the Department explained in the preamble to the final 2024 Rule:

The Department notes that the list of disorders in § 84.4(b) is non-exhaustive and illustrative. The preamble to the DOJ's title II ADA regulation explains why there was no attempt to set forth a comprehensive list of physical and mental impairments. That preamble states “[i]t is not possible to include a list of all the specific conditions, contagious and noncontagious diseases, or infections that would constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list, particularly in light of the fact that other conditions or disorders may be identified in the future.” The Department shares this view.²⁰

Because medical and scientific understanding of conditions, and particularly psychological conditions, changes and evolves, a static list of impairments would be unworkable. Section 504 was instead written to adapt to changing medical understanding, and allows new impairments identified by the medical profession to be recognized as a disability if such impairments meet the statutory definition of a disability. The targeting of GD as an excluded condition is inconsistent with the text and intent of Section 504.

III.                  The Proposed Rule evinces animus toward a discrete and uniquely vulnerable cohort

As noted above, GD is a serious medical condition experienced by some, not all, transgender individuals. While having GD is not synonymous with the status of being transgender, it is associated as all people with GD are transgender or nonbinary individuals. Transgender individuals in the United States are a socially and politically vulnerable group who face unique challenges accessing needed healthcare free from discrimination, making the current rule’s protections against discrimination especially important. For example, according to the 2022 U.S. Trans Survey, nearly half of adult respondents were mistreated by healthcare professionals while seeking treatment. This mistreatment included refusal of healthcare services or harmful or abusive language during treatment.²¹

This mistreatment has serious, life-threatening consequences. More than a quarter of adult respondents to the 2022 U.S. Trans Survey did not see a doctor when they needed to, for fear of mistreatment^.22 LGBTQ youth who felt discriminated against because of their sexual orientation or gender identity reported much higher rates of attempted suicide.²³ The recent increase in anti-trans legislation has also been associated with “increased rates of depression, suicidality, and anxiety compared to their cisgender peers.”²⁴ Yet instead of acting to remove barriers to care and protect individuals from discrimination, the Department has proposed a rule that singles out GD—a condition that only transgender individuals experience—as part of a coordinated effort to create barriers for transgender individuals seeking healthcare.

The Proposed Rule was issued on the same date as several other rules targeting access to care for people with GD, including a prohibition on gender-affirming care for anyone under 18 covered by Medicaid or anyone under 19 covered by CHIP, and changes to the Conditions of Participation for hospitals, making it impossible for hospitals to provide gender-affirming care for anyone under 18, regardless of the source of payment.²⁵ That same day, you issued a declaration attempting to undermine the American Medical Association, the American Academy of Pediatrics, and the American Psychological Association’s conclusions that gender-affirming care is safe and effective.²⁶ If there was any doubt that the Department intended to coordinate these actions, the Department’s press release ties the actions together, saying that the series of regulatory actions are intended to carry out Executive Order 14187: “Protecting Children from Chemical and Surgical Mutilation.”²⁷ In each instance, the action rolled back protections and access to care solely for those with GD—a condition associated with being transgender.

Moreover, the asserted purpose of the Proposed Rule is essentially pretextual. In 2024, the Department issued the first update to its Section 504 regulations since 1977.²⁸ The preamble to the 2024 Proposed Rule said that “restrictions that prevent, limit, or interfere with otherwise qualified individuals’ access to care due to their gender dysphoria, gender dysphoria diagnosis, or perception of gender dysphoria may violate section 504” (emphasis added), that some courts had already considered whether GD constitutes a disability, and that federal courts would continue to make fact-specific determinations regarding the same.²⁹ Less than two years later, the Department claims the Proposed Rule is needed “to address a targeted but consequential gap in regulatory clarity created by the 2024 Final Rule’s preamble.”³⁰ The Department states that “the preamble’s general discussion of gender dysphoria introduced interpretive confusion regarding how the [statutory] exclusion applies to that condition.” But the 2024 Rule’s preamble did not introduce confusion—it simply stated that GD would be addressed the same way that all other 504 claims have been addressed for the past 50 years—through fact-specific determinations by courts.³¹ Rather than allow courts to do precisely that, the Department has leap-frogged the deliberative judicial process, issuing the proposed blanket exclusion of GD from Section 504’s protections.

IV.       Conclusion

We strongly urge the Department to withdraw the Proposed Rule and to retain the 2024 Final Rule in its entirety. Laws and regulations have the power to shape transgender individuals’ experience in a positive way, by providing proper care and support, or in a harmful way, by putting barriers to care in their path.³² We would appreciate the opportunity to work with the Department to find pathways to ensure that everyone has access to affordable, quality health and human services.

We have included numerous citations of supporting research, including direct links to research. We direct HHS to each of the materials we have cited and made available through active links, and we request that the full text of each of the studies and articles cited, along with the full text of our comments, be considered part of the formal administrative record for purposes of the Administrative Procedure Act. If HHS is not planning to consider these materials part of the record as we have requested here, we ask that you notify us and provide an opportunity to submit copies of the studies and articles into the record.

1 Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders: Fifth Edition Text Revision (DSM-5-TR) (2022) [hereafter DSM-5-TR]; see also Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders: Fifth Edition (DSM-V) 453 (2013).

2 Id.

3 42 U.S.C. § 12102(1); see 29 U.S.C. § 705(20)(B) (incorporating the definition of disability from the Americans with Disabilities Act at 42 U.S.C. § 12102(1) into Section 504 for the purposes of nondiscrimination in federally funded programs).

4 See DSM-5-TR, supra note 1.

5 HHS, Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance Proposed Rule, 90 Fed. Reg. 59478, 59480-81 (proposed Dec. 19, 2025).

6 Williams v. Kincaid, 45 F.4th 759, 766-68 (4th Cir. 2022) (reviewing advances in medical understanding and finding the distinction between GID and GD is “not just semantic”).

7 See, e.g., Peggy T Cohen-Kettenis & Friedemann Pfäfflin, The DSM Diagnostic Criteria for Gender Identity Disorder in Adolescents and Adults, 39 Arc. Sex. Beh. 499 (2009), https://www.researchgate.net/publication/38019925_The_DSM_Diagnostic_Criteria_for_Gender_Identity_Disorder_in_Adolescents_and_Adults.

8 DSM-5-TR.

9 See Brief of GLBTQ Legal Advocates & Defenders et al. as Amici Curiae in support of Plaintiff-Appellants at 10-12, Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022) (No. 21-2030), https://www.glad.org/wp-content/uploads/2021/12/20211208-Williams-v-Kincaid-amicus.pdf (discussing evolution of scientific and medical classification of GID and GD).

10 Proposed Rule at 59481, noting that the requirement that “evidence of clinically significant distress or impairment in social, occupational or other important areas of functioning” did not exist in the 1987 version of the DSM, and was only added later.

11 Titia F. Beek et al., Gender Incongruence/Gender Dysphoria and its Classification History, 28 Int’l Rev. Psychiatry 5, 7 (2016).

12 Id. at 9; see also Jack Dresher, Am. Psychiatric Ass’n, Gender Dysphoria Diagnosis (2017), https://www.psychiatry.org/psychiatrists/diversity/education/transgender-and-gender-nonconforming-patients/gender-dysphoria-diagnosis (“With the publication of DSM–5 in 2013, ‘gender identity disorder’ was eliminated and replaced with ‘gender dysphoria’ [which] further focused the diagnosis on the gender identity-related distress that some transgender people experience  . . . rather than on transgender individuals or identities themselves.”); Mark Moran, New Gender Dysphoria Criteria Replace GID, 48 Psychiatric News 9 (2013).

13 Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022), cert. denied, 143 S. Ct. 2414 (2023).

14 29 U.S.C. § 794.

15 Section 504 incorporates the definition of disability in the Americans with Disabilities Act. See 29 U.S.C. § 705(20)(B) (“the term “individual with a disability” means, for purposes of sections 701, 711, and 712 of this title and subchapters II, IV, V, and VII of this chapter, any person who has a disability as defined in section 12102 of Title 42.”).

16 42 U.S.C. § 12102(1).

17 45 C.F.R. § 84.4.

18 42 U.S.C. § 12102(4)(A).

19 45 C.F.R. § 84.4(a)(2)(i).

20 HHS, Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 40066, 40068 (May 9, 2024) (hereinafter “2024 Final Rule.”), quoting 28 C.F.R. part 35, appendix B.

21 Ankit Rastogi et al., Advocates for Transgender Equality, Health and Wellbeing: A Report of the 2022 U.S. Transgender Survey 31 (June 2025), https://transequality.org/sites/default/files/2025-06/USTS_2022Health%26WellbeingReport_WEB.pdf.        

22 Id at 29.

23 Trevor Project, 2023 U.S. National Survey on the Mental Health of LGBTQ Young People 6 (2023), https://www.thetrevorproject.org/survey-2023/assets/static/05_TREVOR05_2023survey.pdf

24 Jessie Melina Garcia Gutiérrez, et al., A Narrative Synthesis Review of Legislation Banning Gender-Affirming Care, 12 Current Pediatrics Reports 44, 47 (2024).

25 HHS, Prohibition on Federal Medicaid and Children’s Health Insurance Program Funding for Sex-Rejecting Procedures Furnished to Children, 90 Fed. Reg. 59441 (proposed Dec. 19, 2025); HHS, Hospital Condition of Participation: Prohibiting Sex Rejecting Procedures for Children, 90 Fed. Reg. 59463 (proposed Dec. 19, 2025).

26 HHS, Declaration of the Secretary of the Department of Health and Human Services re: Safety, Effectiveness, and Professional Standards of Care for Sex-Rejecting Procedures on Children and Adolescents (Dec. 18, 2025).  

27 HHS, Press Release, HHS Acts to Bar Hospitals from Performing Sex-Rejecting Procedures on Children, Dec. 18, 2025, https://www.hhs.gov/press-room/hhs-acts-bar-hospitals-performing-sex-rejecting-procedures-children.html; Exec. Order No. 14187, Protecting Children from Chemical and Surgical Mutilation, 90 Fed. Reg. 8771 (Jan. 28, 2025).

28 See HHS, Discrimination on the Basis of Disability and Human Service Programs or Activities, 88 Fed. Reg. 63392 (Proposed Sept. 14, 2023).

29 Id. at 63464.

30 Proposed rule at 59481.

31 2024 Final Rule at 40069.

32 Rodrigo Heng-Lehtinen and Julia Morita, M.D, Commentary, The Promise and Peril of Being Transgender in America, U.S. News & World Rep.(Feb. 7, 2024) https://www.usnews.com/opinion/articles/2024-02-07/the-promise-and-peril-of-being-trans-in-america (last visited Jan. 13, 2026).