C.F.R. » Title 45 » SUBCHAPTER A—GENERAL ADMINISTRATION › PART 92—NONDISCRIMINATION IN HEALTH PROGRAMS OR ACTIVITIES › Subpart C—Specific Applications to Health Programs and Activities

45 C.F.R. § 92.206

Equal program access on the basis of sex

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(a) A covered entity must provide individuals equal access to its health programs and activities without discriminating on the basis of sex.

(b) In providing access to health programs and activities, a covered entity must not:

(1) Deny or limit health services, including those that have been typically or exclusively provided to, or associated with, individuals of one sex, to an individual based upon the individual's sex assigned at birth, gender identity, or gender otherwise recorded;

(2) Deny or limit, on the basis of an individual's sex assigned at birth, gender identity, or gender otherwise recorded, a health care professional's ability to provide health services if such denial or limitation has the effect of excluding individuals from participation in, denying them the benefits of, or otherwise subjecting them to discrimination on the basis of sex under a covered health program or activity;

(3) Adopt or apply any policy or practice of treating individuals differently or separating them on the basis of sex in a manner that subjects any individual to more than de minimis harm, including by adopting a policy or engaging in a practice that prevents an individual from participating in a health program or activity consistent with the individual's gender identity; or

(4) Deny or limit health services sought for purpose of gender transition or other gender-affirming care that the covered entity would provide to an individual for other purposes if the denial or limitation is based on an individual's sex assigned at birth, gender identity, or gender otherwise recorded.

(c) Nothing in this section requires the provision of any health service where the covered entity has a legitimate, nondiscriminatory reason for denying or limiting that service, including where the covered entity typically declines to provide the health service to any individual or where the covered entity reasonably determines that such health service is not clinically appropriate for a particular individual. A covered entity's determination must not be based on unlawful animus or bias, or constitute a pretext for discrimination. Nothing in this section is intended to preclude a covered entity from availing itself of protections described in §§ 92.3 and 92.302.

(d) The enumeration of specific forms of discrimination in paragraph (b) of this section does not limit the general applicability of the prohibition in paragraph (a) of this section.

Notes of Decisions
Cited in 9 cases (8 in the last 5 years), 2020–2025 · leading case: North Dakota, State of v. Burwell (D.N.D. 2021).
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North Dakota, State of v. Burwell (D.N.D. 2021). · cites it 3× “at 31,471 (formerly codified at 45 C.F.R. § 92.206 ). HHS used this example: “A provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man would have to revise its policy to provide the procedure…”
Whitman-Walker Clinic, Inc. v. U.S. Dep't of Health & Human Servs. (D.D.C. 2021). · cites it 2× “The same Eastern District of New York court later enjoined the repeal of 45 C.F.R. § 92.206 , which “required healthcare providers to ‘treat individuals consistent with their gender identity’ 3 and prohibited them from ‘deny[ing] or limit[ing] health services that are ordinarily…”
Asapansa-Johnson Walker v. Azar II (E.D.N.Y 2020). · cites it 2× “Repeal Related to Bostock and that Plaintiffs Have Standing to Challenge The plaintiffs ask the Court to enjoin the repeal of 45 C.F.R. § 92.206 , which required healthcare providers to “treat individuals consistent with their gender identity” and prohibited them from “deny[ing]…”
Am. Coll. of Pediatricians v. Becerra (E.D. Tenn. 2022). · cites it 2× “at 31,472 (formerly codified at 45 C.F.R. § 92.206 ). The 2016 Rule also expressly states that HHS would not interpret Title IX’s religious exemption to have been incorporated into Section 1557.”
Boston All. of Gay, Lesbian, Bisexual & Transgender Youth (BAGLY) v. United States Dep't of Health & Human Servs. (D. Mass. 2021). “In light of the nationwide injunctions issued by sister courts, this Court declines to address now Plaintiffs’ challenges to the repeal of the definition of “on the basis of sex,” the repeal of 45 C.F.R. § 92.206 , and the incorporation of Title IX’s religious exemption.”
Hammons v. Univ. of Maryland Med. Sys. Corp. (D. Maryland 2023). “at 47918 (to be codified at 45 C.F.R. § 92.206 ). program—which they argue is St.”
Franciscan All., Inc. v. Price (N.D. Tex. 2021). “ordinarily or exclusively available,’” Asapansa-Johnson, 2020 WL 6363970 (quoting 45 C.F.R. § 92.206 ); and (4) the statute may not be applied or enforced by HHS against the Religious Sisters of Mercy, Sacred Heart Mercy Health Care Center (Alma, MI), SMP Health System, and…”
Franciscan All., Inc. v. Price (N.D. Tex. 2021). “health services are ordinarily or exclusively available,’” Walker, 2020 WL 6363970 (quoting 45 C.F.R. § 92.206 ); and (4) the statute may not be applied or enforced by HHS against the Religious Sisters of Mercy, Sacred Heart Mercy Health Care Center (Alma, MI), SMP Health…”
Neese v. Becerra (5th Cir. 2025). “” 45 C.F.R. § 92.206 (b)(4). And just weeks ago, the Solicitor General argued before the Supreme Court that a Tennessee law that takes the exact same view as Dr.”
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