OCR Rescinds 2022 Guidance on Gender Affirming Care
Following President Trump’s Executive Order 14187 – Protecting Children from Chemical and Surgical Mutilation – the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has rescinded its previously issued guidance on gender affirming care – HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy.
The Executive Order put an end to the United States funding, sponsoring, promoting, assisting, and supporting the transitioning of children from one sex to another, with President Trump committing to rigorously enforcing all laws that prohibit or limit gender transitioning procedures. President Trump also issued Executive Order 14168 – Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government – which made it the policy of the United States to only recognize two sexes – male and female. The rescinding of previous OCR guidance on gender affirming care aligns with both of those Executive Orders.
The OCR guidance was issued in March 2022 under the Biden administration, confirming that the HHS recognized that medically appropriate and necessary gender affirming care improved mental and physical health outcomes for minors. The guidance sought to ensure that minors could access gender affirming care without discrimination. OCR stated in the guidance that it would enforce Section 1557 of the Affordable Care Act, which prohibits discrimination of sexual orientation and gender identity in health programs and activities that receive funding from the HHS.
The 2022 guidance also reminded HIPAA-regulated entities that HIPAA prohibits the disclosure of protected health information related to gender affirming care without a valid authorization from a patient except in limited circumstances (for treatment, payment, or healthcare operations), and that the HIPAA Privacy Rule permits, but does not require, disclosures of PHI related to gender affirming care when required by another law. On February 20, 2025, OCR, under the leadership of Acting OCR Director Anthony Archeval, officially rescinded the 2022 guidance. Archeval also said OCR will be issuing new guidance protecting whistleblowers who take action related to ensuring compliance with the order.
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“Today’s rescission provides important notice to the regulated community that the 2022 OCR Notice and Guidance no longer represents the views or policies of HHS OCR,” said Archeval. “The rescission is a significant step to align civil rights and health information privacy enforcement with a core Administration policy that recognizes that there are only two sexes: male and female.”
While the 2022 guidance has been rescinded, the Final Rule issued by the Biden administration to strengthen reproductive healthcare privacy – HIPAA Privacy Rule to Support Reproductive Healthcare Privacy – established a broad definition of “reproductive health information”, which can include data related to gender affirming care. The Reproductive Healthcare Privacy final rule remains in effect.
