Rule2026-11015
Notice of Vacatur Regarding Certain Provisions of the 2024 Nondiscrimination in Health Programs and Activities Final Rule
Primary source
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Published
June 2, 2026
Issuing agencies
Health and Human Services DepartmentCenters for Medicare & Medicaid Services
Abstract
This is to inform the public that, on October 22, 2025, the United States District Court for the Southern District of Mississippi issued an order in Tennessee v. Kennedy, No. 1:24-cv-161-LG-BWR (S.D. Miss. Oct. 22, 2025), vacating portions of the final rule titled "Nondiscrimination in Health Programs and Activities," published May 6, 2024 (89 FR 37522). Specifically, the court vacated certain provisions of the regulation to the extent they expand Title IX's definition of sex discrimination to include gender-identity discrimination. Pursuant to the court's order, the vacated provisions are legally void. The other provisions of the Section 1557 Rule remain in force.
Full Text
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<title>Federal Register, Volume 91 Issue 105 (Tuesday, June 2, 2026)</title>
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[Federal Register Volume 91, Number 105 (Tuesday, June 2, 2026)]
[Rules and Regulations]
[Pages 32887-32888]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-11015]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 438, 440, 457, and 460
Office of the Secretary
45 CFR Parts 80, 84, 92, 147, 155 and 156
Notice of Vacatur Regarding Certain Provisions of the 2024
Nondiscrimination in Health Programs and Activities Final Rule
AGENCY: Office for Civil Rights, Office of the Secretary, Department of
Health and Human Services; Centers for Medicare & Medicaid Services,
Department of Health and Human Services.
ACTION: Notification of court decision.
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SUMMARY: This is to inform the public that, on October 22, 2025, the
United States District Court for the Southern District of Mississippi
issued an order in Tennessee v. Kennedy, No. 1:24-cv-161-LG-BWR (S.D.
Miss. Oct. 22, 2025), vacating portions of the final rule titled
``Nondiscrimination in Health Programs and Activities,'' published May
6, 2024 (89 FR 37522). Specifically, the court vacated certain
provisions of the regulation to the extent they expand Title IX's
definition of sex discrimination to include gender-identity
discrimination. Pursuant to the court's order, the vacated provisions
are legally void. The other provisions of the Section 1557 Rule remain
in force.
DATES: The Tennessee court issued its vacatur order on October 22,
2025. As long as the specified provisions of the 2024 Section 1557 Rule
remain vacated, OCR and CMS cannot and will not enforce the vacated
provisions.
FOR FURTHER INFORMATION CONTACT: Steven Mitchell at (202) 240-3110 or
(800) 537-7697 (TDD), or by email at <a href="/cdn-cgi/l/email-protection#94a5a1a1a3d4fcfce7baf3fbe2"><span class="__cf_email__" data-cfemail="0332363634436b6b702d646c75">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
The Office for Civil Rights (OCR) at the U.S. Department of Health
and Human Services (HHS or the Department) is responsible for enforcing
Section 1557 of the Affordable Care Act (ACA) (Section 1557).\1\
Section 1557 prohibits discrimination on the basis of race, color,
national origin, sex, age, or disability in a health program or
activity, any part of which is receiving Federal financial assistance.
On August 4, 2022, the Department published a Notice of Proposed
Rulemaking (NPRM).\2\ On May 6, 2024, the Department published a final
rule, the Nondiscrimination in Health Programs and Activities Rule
(2024 Rule or Rule),\3\ which finalized proposals in the NPRM. The 2024
Rule provides, among other things, that discrimination on the basis of
sex includes discrimination on the basis of gender identity.\4\
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\1\ 42 U.S.C. 18116.
\2\ See 87 FR 47824.
\3\ See 89 FR 37522 (May 6, 2024).
\4\ 45 CFR 92.101(a)(2)(iv).
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On July 3, 2024, the United States District Court for the Southern
District of Mississippi granted a preliminary injunction that
prohibited HHS from enforcing, relying on, implementing, or otherwise
acting pursuant to the 2024 Rule's provisions concerning gender-
[[Page 32888]]
identity discrimination.\5\ The Court also stayed the Rule's effective
date as to specific provisions, insofar as the Rule was intended to
extend discrimination on the basis of sex to include discrimination on
the basis of gender identity.
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\5\ Tennessee v. Becerra, No. 1:24-cv-161-LG-BWR (S.D. Miss.
July 3, 2024) Dkt. 30.
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On October 22, 2025, the court issued a final judgment vacating the
following parts of the 2024 Rule to the extent that they expand Title
IX's definition of sex discrimination to include gender-identity
discrimination: 42 CFR 438.3(d)(4), 42 CFR 438.206(c)(2), 42 CFR
440.262 (which apply to CHIP managed care through cross-references in
Sec. Sec. 457.1201(d) and 457.1230(a), and CHIP fee-for-service
through cross-reference at Sec. 457.495(e)), 42 CFR 460.98(b)(3), 42
CFR 460.112(a), 45 CFR 92.101(a)(2)(iv), 45 CFR 92.206(b)(1)-(4), 45
CFR 92.207(b)(3)-(5), 45 CFR 92.8(b)(1), 45 CFR 92.10(a)(1)(i), and 45
CFR 92.208.\6\ The court also issued plaintiffs the following
declaratory judgment: ``HHS exceeded its statutory authority when (1)
it interpreted Title IX, as incorporated into Section 1557, to prohibit
discrimination on the basis of gender identity, and (2) when it
implemented Section 1557 regulations concerning gender identity and
`gender affirming care.' '' \7\
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\6\ Tennessee v. Kennedy, No. 1:24-cv-161-LG-BWR (S.D. Miss.
Oct. 22, 2025). The court held ``universal vacatur is the
appropriate remedy'' and that HHS exceeded its statutory authority.
Dkt. 79 at 21.
\7\ Final Judgment, Tennessee v. Kennedy, No. 1:24-cv-161-LG-BWR
(S.D. Miss. Oct. 22, 2025), Dkt. 80 at 1-2.
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As long as the specified provisions of the 2024 Section 1557 Rule
remain vacated, those provisions are legally void to the extent that
they expand Title IX's definition of sex discrimination to include
gender-identity discrimination. OCR cannot and will not investigate or
enforce compliance with, the provisions of the 2024 Rule that were
vacated, to the extent that such provisions expanded Title IX's
definition of sex discrimination to include gender-identity
discrimination.
II. Who/what is covered by this notification?
This Notification applies to all covered entities with respect to
their compliance with the provisions of the 2024 Section 1557 Rule that
were deemed unlawful and vacated by the court.
III. Who/what is not covered by this notification?
This Notification does not apply to the provisions of the Section
1557 Rule that were not vacated in the Court's October 22, 2025, final
judgment or to the specified provisions to the extent they relate to
things other than expanding Title IX's definition of discrimination to
include gender-identity discrimination. The other provisions of the
2024 Rule remain in force.
IV. Collection of Information Requirements
This Notification creates no legal obligations and no legal rights.
Because this Notification imposes no information collection
requirements, it need not be reviewed by the Office of Management and
Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
The Administrator of the Centers for Medicare & Medicaid Services
(CMS), Mehmet Oz, having reviewed and approved this document,
authorizes Evell Barco Holland, who is the Federal Register Liaison, to
electronically sign this document for purposes of publication in the
Federal Register.
Paula M. Stannard,
Director, Office for Civil Rights.
Evell Barco Holland,
Federal Register Liaison, Centers for Medicare & Medicaid Services.
[FR Doc. 2026-11015 Filed 6-1-26; 8:45 am]
BILLING CODE 4153-01-P
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