Section 504 potentially under threat due to lawsuit from 17 Republican attorneys general
Section 504 potentially under threat due to lawsuit from 17 Republican attorneys general
There is a lot of news and buzz surrounding Section 504 and a lawsuit from 17 Republican-leaning states. I will try my best to cover what’s going on.
First, what is Section 504?
Section 504 of the Rehabilitation Act of 1973 is a law that requires any program or activity that receives federal funding to not discriminate against disabled individuals on the basis of their disability. Because all states receive some form of federal funding, the law covers the entire nation.
It is one of the first laws that protects the rights of people with disabilities and precedes the ADA in 1990. Many of us in the Deaf community know of Section 504 and it is often brought up in discrimination lawsuits.
Section 504 requires school districts, hospitals, doctors' offices, CPS, FEMA, and other government agencies to provide accommodations to disabled children and covers interpreters, CART captioning, or other auxiliary aids.
Now, what is going on with the lawsuit? Why is this happening?
In May 2024, the Biden administration’s Department of Health and Human Services (HHS) did a series of updates to Section 504 (called “Final Rule”) after getting input from disability advocates. Some of the updates benefit deaf people by requiring hospitals to have sign language interpreters and requiring videos to have captions.
However, one of the updates touched on a hot-button issue — gender dysphoria, which is when a person has significant distress by feeling that there is a mismatch with the gender they were born with and the gender they feel they are. Some transgender people have this condition.
The Biden HHS said in the preamble of its Final Rule that "an individual with gender dysphoria may have a disability under section 504. The Biden HHS said it agreed with a recent federal court ruling that "gender dysphoria may constitute a disability under section 504." The final rule does not declare that gender dysphoria is "now a disability," but gives support to the idea that they may be disabled and may need protections.
It’s important to note that the preamble is not considered a part of the regulations. The preamble can be rejected by new administrations.
Now, the lawsuit.
In September 2024, the state of Texas and 16 other Republican-leaning states filed a lawsuit against the Biden administration to oppose the idea that “gender dysphoria” may be a disability and a protected condition.
The 17 states that filed the lawsuit exaggerated what the HHS said by claiming that they added "gender dysphoria" to the "definition of 'disability' under Section 504."
To clarify again, it is not enforced in the Final Rule to classify gender dysphoria as a disability, although the HHS leaned in support of the idea.
The 17 states said in the lawsuit "because gender dysphoria is purely psychological, not physical, and cannot be confirmed or falsified by any physical test, it is not and cannot be a disability under Section 504..."
The lawsuit said "the Final Rule imposes severe and irreparable harm on Texas by imposing various costs, burdens... as well as by creating a conflict between state laws and policies and federal regulation." The other states said they would be similarly impacted because they would lose federal funding and access to federal programs if they did not comply with the idea of gender dysphoria as a disability.
At the end of the lawsuit, the 17 states asked a judge to broadly declare Section 504 as unconstitutional. It said "Section 504's universal scope unfairly surprises States by retroactively adding conditions to pre-existing federal spending programs."
What will happen next?
On February 25, both the 17 states and the federal government (the Trump administration) will submit legal briefs before the U.S. District Court Judge Wesley Hendrix.
The lawsuit was recently put on hold due to the change in the federal administration but will proceed on February 25 with the court reviewing all arguments. The court will then make a ruling.
Now, what are some of the serious concerns raised by disability advocates?
They are concerned that Section 504 could be dismantled in its entirety.
Sara Nović, a Deaf author and activist, has been posting on her Instagram many pieces of information about Section 504 being at risk. She said some attorneys general are claiming that they do not intend to dismantle the entire Section 504 but Nović pointed out that it’s what the lawsuit says.
Nović said the lawsuit is using gender dysphoria as a cover to conceal that they do not want to comply with various other directives in the Final Rule. She pointed out that gender dysphoria is not even enforceable but there are many other important things like providing interpreters that are enforceable -- which could be thrown out.
If you look at the lawsuit, you will see that the 17 states asked the court to “declare Section 504 unconstitutional” and to “issue permanent injunctive relief against Defendants enjoining them from enforcing Section 504.”
So, it certainly looks like the lawsuit, if the 17 states win their ruling, can render Section 504 toothless.
To look at the other side, I checked out what some of the attorneys general in the lawsuit told news outlets about Section 504.
South Carolina’s AG Alan Wilson told WMBF News that he joined the lawsuit with the sole intention of removing “gender identity disorders” from Section 504 and restoring it to what Congress passed originally. He said he doesn’t want to throw out Section 504 in its entirety.
Iowa’s AG Office told the Des Moines Register they do not want to change or remove anyone’s 504 plan. The office said the lawsuit actually seeks to protect the 504 law from being jeopardized by the “transgender mandate” and makes sure that parents will not have to worry about whether their child will get the support they need in school.
Arkansas' Attorney General Griffin told KNWA News that he's not trying to challenge Section 504 itself but is challenging the Biden administration's adding gender dysphoria to what constitutes a disability. Griffin said the gender dysphoria component could put the state's federal funding in jeopardy. He said several times that he does not want to get rid of Section 504 entirely.
So you can definitely see that there’s confusion and sometimes conflicting information on what the attorneys general want, what the lawsuit says, and what activists are saying.
We'll see how the court rules after February 25. Will the court do away with the entire Section 504? Will the court keep Section 504 as it was before the Biden administration's final rule?
Nović said the lawsuit against Section 504 is a part of a broader push that attacks disability rights, such as the removals of DEIA divisions from federal agencies, Trump’s desire to dismantle the Department of Education, or the White House no longer providing ASL interpreters. She is encouraging deaf and disabled folks and allies to contact their lawmakers to press attention on this matter. She also said if this Final Rule is thrown out, it wouldn't make a difference with gender dysphoria because it's not enforceable, but it would throw out many protections for disabled people such as independent living stipends, interpreters, captioned telehealth, and numerous other protections.
So, that’s the information that I have on Section 504. Although the Republican AGs said they don’t want to touch on Section 504’s longstanding protections for disabled people, it is very concerning that a judge could decide that Section 504 is unconstitutional and it would jeopardize millions of people’s protections.
Sources:
Biden HHS Final Rule: https://www.federalregister.gov/documents/2024/05/06/2024-08711/nondiscrimination-in-health-programs-and-activities
Lawsuit: https://www.texasattorneygeneral.gov/sites/default/files/images/press/HHS%20Rehabilitation%20Act%20Complaint%20Filestamped.pdf
Sara Nović IG: https://www.instagram.com/photonovic/
https://theeducatorsroom.com/in-a-new-lawsuit-17-states-sue-to-do-away-with-504-protections/