Labor & Employment Law Daily Wrap Up, PROCEDURE—E.D.N.Y.: Challenge to HHS’s 2020 gender identity rule is not moot, (Jul 14, 2025)

By Sherri M. Schroeder, J.D.

Per the court, the 2020 Rule remains in effect and, until it is replaced, vacating its repeal of the 2016 Rule would leave the latter’s definitions in place and would afford effective relief to the challenger.

A 2020 rulemaking by HHS proposed repeal of the novel definition of “sex” laid out by a 2016 HHS rulemaking generally requiring entities covered by the rule to “provide individuals equal access to its health programs or activities without discrimination on the basis of sex,” which was defined to include discrimination on the basis of sex stereotyping and gender identity. When a challenger sought judicial review of that 2020 rulemaking, HHS moved to dismiss the challenger’s complaint as moot in light of a 2024 rulemaking that ostensibly replaced the 2020 Rule. However, because HHS is currently subject to nationwide injunctions preventing the 2024 Rule from taking effect, the Court concluded that the legality of the 2020 Rule remains a “live controversy” and denied HHS’s motion to dismiss (Walker v. Kennedy, No. 20-CV-2834 (FB) (VMS) (E.D.N.Y. July 8, 2025)).

2016 Rule. Section 1557 of the Patient Protection and Affordable Care Act makes it unlawful for any health care program receiving federal funding or administered by a federal agency to discriminate on any ground prohibited under Title IX of the Education Amendments of 1972. In 2016, HHS finalized rulemaking that generally requires covered entities to “provide individuals equal access to its health program or activities without discrimination on the basis of sex.” The 2016 Rule defined “basis of sex” to include sex stereotyping and gender identity, among other things. A few months later, a Texas district court held that Title IX “unambiguously prevented discrimination [only] on the basis of the biological differences between males and females” and that the 2016’s expanded definition exceeded the grounds incorporated by Section 1557. The court preliminarily enjoined the 2016 Rule’s enforcement and later vacated its “unlawful portions.” On appeal, the Fifth Circuit left the vacatur in effect.

2020 Rule. HHS began dismantling the 2016 Rule following the 2016 presidential election. In June of 2019, it proposed the 2020 Rule to “to repeal the novel definition of ‘sex’ in the [2016 Rule].” The agency declined to substitute a different definition, however. A year later, the Supreme Court decided Bostock v. Clayton Cnty., wherein the Supreme Court found that Title VII protects employees from discrimination based on sexual orientation or gender identity. Four days later, HHS finalized its repeal of § 92.4 of the 2016 Rule without change and refused requests to reconsider the 2020 Rule in light of Bostock. Opponents began filing actions seeking judicial review of the 2020 Rule under the Administrative Procedure Act (APA), seeking to have the rule set aside and prevent its enforcement. One day before the 2020 Rule was scheduled to take effect, the court addressed the challenger in this case’s request for interim relief and found that she had established standing, irreparable harm, and a likelihood of success on the merits. The court then stayed the repeal and preliminarily enjoined HHS from enforcing it.

2024 Rule. In May of 2024, HHS published the final version of the 2024 Rule, which defined “discrimination on the basis of sex” to include sexual orientation, gender identity, and sex stereotypes. Two days before the Rule would take effect, district courts in Mississippi, Florida, and Texas stayed that effective dates to varying degrees. Currently, President Trump has issued an executive order directing that “sex” is “not a synonym for and does not include the concept of ‘gender identity.’” However, HHS has not yet proposed a repeal of the 2024 Rule, but it did rescind the 2021 notice that it would interpret § 1557 to include discrimination based on sexual orientation and gender identity.

Mootness. The court noted that the 2024 Rule’s definition of sex discrimination has never taken effect. The 2024 Rule’s preamble states that the 2020 Rule remains in effect, save for the parts enjoined or set aside by courts, until the effective date of the final 2024 Rule. According to the court, the nationwide stays and injunctions indefinitely postpone that effective date. “As a result,” notes the court, “the viability of the 2020 Rule remains a live issue.” The lower court in the case at hand already concluded that the 2020 Rule’s repeal of parts of the 2016 Rule are likely arbitrary, capricious, and contrary to law and further explained that the effect of that ruling means the definitions of “on the basis of sex,” “gender identity,” and “sex stereotyping” currently set forth in the 2016 version of 45 C.F.R. § 92.4 will remain in effect. It was also clear to this court that, in light of HHS’s preliminary response to President Trump’s directive to exclude gender identity from the definition of sex discrimination, the 2024 Rule will never take effect, which means that, as a practical matter, the 2020 Rule will remain in effect until it is superseded by something else. “Unless and until [the 2020 Rule] is replaced, vacating its repeal of the 2016 Rule would leave the latter’s definitions in place and would, therefore, afford [the challenger in this case] ‘effective relief,’” states the court. “Thus, as matters now stand, the case is not moot.”

Acknowledging that the other challenges to the 2020 Rule have all been dismissed, the court went on to respectfully disagree with other conclusions in those cases. The Sixth Circuit court had concluded that the 2024 Rule would take effect in a few weeks and leave no credible threat of enforcement of the old rules and further reasoned that the plaintiffs before the court had not identified any specific provision of the 2020 Rule still in force. The New York district court was not persuaded it had the power to “reanimate the 2016 Rule’s provisions.” The court at hand, however, had no such qualms, stating, “’Reanimating’ parts of the 2016 Rule is the ineluctable result of setting aside the 2020 Rule’s repeal, which the Court undoubtedly has the power—indeed, the obligation—to do if it concludes that the repeal violates the APA.”

The court went on to note that with the dismissal of the other cases challenging the 2020 Rule, only the case at hand remains. “If the Court were to conclude that [the challenger’s] case is moot, it would have to lift the stay and dissolve the preliminary injunction, thus allowing that rule’s repeal of the 2016 Rule’s definition of sex discrimination to take effect. But [the challenger] argues that the repeal is unlawful, and the Court has tentatively agreed. So long as the 2020 Rule remains in effect, her challenge is not moot.”

The case is No. 20-CV-2834 (FB) (VMS).

Judge: Block, F.

Attorneys: Kathryn M. Zunno (Baker & Hostetler LLP) for Tanya Asapansa-Johnson Walker. Robert F. Kennedy, Jr. and U.S. Department of Health and Human Services.

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