President Trump has issued a memorandum ordering a regulatory freeze pending review and an executive order focused on gender identity with potential future impacts for employer-sponsored employee benefits. Here are highlights:
Regulatory Freeze Memorandum.
The memorandum directs federal executive departments and agencies not to propose or issue regulations (including by submitting them for publication in the Federal Register), and to withdraw regulations that have been submitted but not published, until they have been reviewed and approved by a department or agency head appointed by President Trump.
Departments and agencies are further directed to consider postponing for at least 60 days the effective date of regulations that have been published in the Federal Register but have not yet taken effect, for the purpose of reviewing questions of fact, law, or policy.
During the 60-day period, they are to consider opening a comment period and reevaluating pending petitions involving the regulations. Following the effective date delay, agencies are to notify the Office of Management and Budget of regulations that “raise substantial questions of fact, law, or policy.”
The memorandum notes that it also applies to agency actions that promulgate or are expected to lead to the promulgation of final regulations (including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking), as well as agency statements “of general applicability and future effect” that set forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.
Gender Identity Executive Order.
The executive order sets forth the administration’s position that the term “sex” refers to “an individual’s immutable biological classification as either male or female…and does not include the concept of ‘gender identity.’” Federal agencies are directed to enforce all laws governing sex-based rights and protections using this definition and to “promptly rescind” all guidance documents inconsistent with the order. The order further prohibits the use of federal funds to promote “gender ideology” and rescinds past executive orders expressing the conflicting intentions of the prior administration.
EBIA Comment. The gender identity executive order may ultimately have implications for plans and insurers attempting to comply with the nondiscrimination mandates of Title VII and Affordable Care Act Section 1557.
Both the general regulatory freeze and the gender identity order appear to extend to agency guidance not yet published in the Federal Register and may impact agency FAQs and other subregulatory guidance.
Thus, we may see revisions and new proposals in the days and weeks to come. In the meantime, however, employers, administrators, insurers, and advisors should continue their compliance efforts while closely monitoring developments that may impact their responsibilities.
EBIA’s manuals will be updated as warranted.
Contributing Editors: EBIA Staff.
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