Equality Arlington Opposes the U.S. Department of Health and Human Services’ Proposed Gender Dysphoria Regulation

To Whom It May Concern:

We are writing on behalf of Equality Arlington to provide comments regarding the U.S. Department of Health and Human Services (HHS) proposed rule, “Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance.” Equality Arlington is a nonprofit advocacy organization dedicated to improving the lives of the LGBTQ+ community in Arlington, Virginia.

We urge HHS to maintain its commitment to a robust disability civil rights framework that continues to recognize disabilities based on a gender dysphoria diagnosis and request that HHS leave the final rule issued in 2024 in place.

LGBTQ+ individuals living and working in Arlington – including transgender and non-binary people – deserve continued protection under federal civil rights law. Indeed, disability rights enshrined in both section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA) have long protected people with HIV from discrimination in public and private spaces at times when stigma and fear threatened these rights.[1] These civil rights laws provide both legal recourse when an individual is denied equal access to publicly available services and federally funded programs as well as recognition of the dignity and worth of people living with disabilities.

HHS relies on statutory language found in both the Rehabilitation Act and the ADA excluding “gender identity disorders not resulting from physical impairments” from the definitions of “disability” and “individual with a disability” to argue that gender dysphoria must be excluded from disability rights protections.[2] However, updates to the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association in 2013 replaces the term “gender identity disorder” with “gender dysphoria,” and amends the definition to decouple the condition of gender dysphoria from the identity of being transgender. The DSM defines gender dysphoria as causing “clinically significant distress or impairment in social, occupational, or other important areas of functioning.”[3] This more narrow definition places gender dysphoria squarely outside of the statutory exclusion included in the Rehabilitation Act and ADA when it results in physical manifestations.

The Fourth Circuit Court of Appeals is the only appellate court to have addressed the issue of whether section 504’s and the ADA’s exclusion for “gender identity disorders not resulting from physical impairments” included gender dysphoria in its decision in Williams v. Kincaid.[4] There, the Court concluded that the language excluding gender identity disorders from coverage did not encompass gender dysphoria, noting the fifth edition of the DSM published in 2013 articulated an evolved medical understanding of gender dysphoria as distinct from gender identity disorders. The 2024 final rule implementing section 504 relied heavily on the Williams reasoning.

The Supreme Court has long interpreted the disability protections in the Rehabilitation Act and ADA to confer broad protections for people with disabilities, and we urge HHS to maintain this commitment. In 1998, for example, the Supreme Court issued a landmark decision in Bragdon v. Abbott, holding that the ADA prohibits discrimination against people with HIV, looking to the underlying purpose of the ADA to recognize that asymptomatic HIV qualified as a protected disability. At a time when fear and stigma drove a concerted effort to exclude HIV and AIDS from disability protections, the Court followed evidence and science over animus. HHS must similarly maintain its commitment to an approach to disability rights based on evidence and medical consensus and not exclude gender dysphoria based solely on animus against transgender and non-binary people.

Thank you for the opportunity to comment. Please reach out to Equality Arlington President, Kellen MacBeth for questions (board@equalityarlington.org).  

Sincerely,

Kellen MacBeth

President, Equality Arlington

[1] HHS, Know the Rights That Protect Individuals with HIV, https://www.hhs.gov/sites/default/files/knowyourrightshivaidsfactsheet.pdf

[2] 29 U.S.C. 705(9) & (20)(F)(i); 42 U.S.C. 12211(b)(1)

[3] DSM-5, https://www.psychiatry.org/file%20library/psychiatrists/practice/dsm/apa_dsm-5-gender-dysphoria.pdf

[4] Williams v Kincaid, 45 F 4th 759 4th Cir 2022

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