Over a dozen states are seeking to invalidate one of the nation’s key disability rights laws, advocates are warning, jeopardizing access to health care, education and more.
A lawsuit brought by Texas and 16 other states is calling for an end to Section 504 of the Rehabilitation Act. The 1973 law bars discrimination on the basis of disability at any entity that receives federal funds.
The suit known as Texas v. Becerra was filed in response to an update to Section 504 regulations that was finalized by the Biden administration last year. With the litigation, the states are looking to ensure that gender dysphoria does not qualify as a disability under the rule. However, in challenging the regulations, the states’ lawsuit asks the court to “declare Section 504, 29 U.S.C. § 794, unconstitutional” in its entirety.
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“If this happens, it would be a disaster for disabled people and everything from education to employment would be negatively impacted,” said Maria Town, president and CEO of the American Association of People with Disabilities.
Section 504 has a broad reach, extending to health care, public education, housing, transportation and much more, advocates say. While many students with disabilities are covered by the Individuals with Disabilities Education Act, federal figures show that 3% of students are served under Section 504 alone.
The latest 504 regulations clarified that medical providers cannot make treatment decisions based on disability biases, expanded the availability of accessible medical diagnostic equipment and set expectations for accessibility on providers’ websites and mobile applications, among other changes.
If the court were to determine that Section 504 is unconstitutional, disability advocates are concerned that the basis of such a decision could also undermine other laws, including the Americans with Disabilities Act.
“If the judge were to adopt it, and actually declare the statute unconstitutional, it could portend that other anti-discrimination statutes based on race and sex and ethnicity are also unconstitutional for the same reason,” Steven Schwartz, senior counsel at the Center for Public Representation, said during a recent webinar. “And because there’s provisions in the regulations that tie together, that link 504 and the ADA, and prohibitions on race and sex discrimination, it links them all in how they’re enforced. Striking down the rule might imperil the ADA as well.”
Schwartz described that scenario as “simply frightening.”
Now, advocates are calling for state attorney generals to back out of the litigation. So far, officials in South Carolina and West Virginia softened their stance after facing pressure, though they haven’t officially dropped out.
However, attorney generals in other states are doubling down. Texas Attorney General Ken Paxton, who’s leading the effort, said the lawsuit is continuing. Arkansas Attorney General Tim Griffin said in a posting on social media that there’s been a lot of misinformation circulating about the case and insisted that the “lawsuit does NOT seek to eliminate Section 504.” And, in a statement, Iowa Attorney General Brenna Bird said that the action from the states is “protecting Section 504 accommodations.”
“That simply isn’t true,” said Alison Barkoff, a professor at George Washington University who led the U.S. Department of Health and Human Services’ Administration on Community Living under the Biden administration. “The requested relief in the complaint is to enjoin the entire HHS regulation and to declare the Section 504 statute unconstitutional.”
Filings are due next week in the case, which is before the U.S. District Court for the Northern District of Texas, and advocates say they expect to learn more at that point about the Trump administration’s position.
“It’s possible that the Trump DOJ could decide to continue to defend the statute and regs, just the statute or the parties could all drop the case,” Barkoff said.
The Trump administration could also choose to address the states’ concerns about gender dysphoria by going through the rulemaking process to change the regulation or by simply updating the preamble to the rule, which wouldn’t require any notice or comment period, Barkoff said.
