In official comments to Secretary Xavier Becerra and the U.S. Department of Health and Human Services, Concerned Women for America (CWA), the nation’s largest public policy women’s organization, raises serious concerns about the practical applications of “gender dysphoria” as a disability under section 504 of the Rehabilitation Act.

The proposed rule, Discrimination on the Basis of Disability in Health and Human Service Programs or Activities (Rule), fails to justify or clarify inclusion of a new category of disability referred to as “gender dysphoria” under Section 504 of the Rehabilitation Act.

The Americans with Disabilities Act (ADA) defines disability as “a physical or mental impairment that substantially limits one or more major life activities of the individual.” By statute, it excludes “gender identity disorders not resulting from physical impairment.”

The DSM-5-TR defines “gender dysphoria” (in part) as “a marked incongruence between one’s experienced/expressed gender and assigned gender, lasting at least 6 months” and “associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.” This manual is not a government publication subject to legislative review and oversight.

In Williams v. Kincaid (45 F.4th 759 (4th Cir. 2002), cert. denied, 143 S. Ct. 2414 (2023)), a panel of the Fourth Circuit held that the term “gender identity disorder” contained in the ADA is a “now obsolete” term and that the diagnosis of gender identity disorder “no longer exists.” If you agree with this interpretation, why does the Rule retain the language “gender identity disorder” as an exclusion under Section 84.4 (g)(1)? Does the Department believe it is now “obsolete”? Are you seeking to overrule the court?

You state: “The Department agrees 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.” Yet, the Rule provides no official definition of or limitation on what constitutes “gender dysphoria” as a disability nor who is a “qualified individual” with gender dysphoria, and even extends application to an amorphous “perception of gender dysphoria.”

You propose to impose a sweeping new disability discrimination mandate for “gender dysphoria” which is nowhere settled in disability law nor adequately defined or justified in this Rule. By applying this mandate to Section 504 and threatening violations, this Rule imposes numerous unidentified impacts and liabilities and substantial new burdens which require response.

Click here to read the comments in their entirety.