LUBBOCK, TEXAS – Texas Attorney General Ken Paxton and 16 other state Attorneys General are engaged in a lawsuit at the federal district level against Xavier Becerra, the former Secretary of Health and Human Services, over a new rule in federal disability law.
According to the lawsuit filed on Sept. 26 of last year, the Biden Administration added “gender dysphoria” to the definition of disability, which would ensure transgender people not be discriminated against, under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA). The added protection was done through the federal-rule making process.
The states of Texas, Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah and West Virginia filed the lawsuit to prevent that rule from taking effect. The rule adds gender dysphoria to the definition of disability in the longstanding ADA.
According to the lawsuit, the rule change would affect their eligibility for federal funding. The program’s conditions for federal funding and grants “unfairly surprises” them with unknown conditions added to federal programs, the complaint said.
But a specific line in the lawsuit is raising alarm for some people that the case could have a much more sweeping impact beyond removing protections for “gender dysphoria.”
At issue is item D in the Demand for Relief section (on page 42), which asks the judge to “Declare Section 504, 29 U.S.C. § 794, unconstitutional.”
Some advocates worry that this could open the door for a dismantling of all protections afforded under Section 504 of the ADA.
The Iowa Attorney General’s Office told the Des Moines Register that the lawsuit does not seek to demolish Section 504 as a whole.
KSAT reached out to Paxton for clarification on his intent. He released the following general statement to the media:
“Despite a misinformation campaign, Texans should know that from the very beginning, this lawsuit has not sought to take away the protections for anyone currently covered under the Rehabilitation Act, but to protect them from federal attempts to strip their funding due to any refusal by Texas to abide by a ‘gender-identity’ mandate.”
The judge in the case has asked the plaintiff and defendant to file joint status reports by Feb. 25 as the case proceeds.
What is Section 504?
The Office of Civil Rights (OCR) defines Section 504 as a national law that protects the rights of people with disabilities from discrimination.
It was part of the Rehabilitation Act of 1973, the first major federal law to enact protection for disabled people.
According to Section 504, organizations and employers receiving federal assistance, including public schools, hospitals, human service programs, government agencies and housing, are not allowed to deny qualified individuals with disabilities an equal right to receive services and program benefits.
A disabled person, defined by the OCR, is defined as someone who has a mental or physical impairment that limits one or more major life activities in a meaningful way, even with the help of medication.
Some examples of disabilities include: deafness or hard or hearing, AIDS, mental illnesses, alcoholism, heart disease and blindness.
Manual tasks, learning, hearing, caring for oneself, seeing and working are examples of life activities that a disability might impair.
Section 504 in Action
For school programs, Section 504 regulations require school districts to provide a “free appropriate public education” (FAPE) to any student with a disability, regardless of nature or severity.
Further, the law is to ensure no student with a disability is discriminated against just because they are disabled.
The U.S. Department of Education said these services can include putting a student in a regular classroom, adding supplementary services in a regular classroom (such as repeating instructions, having note-takers, sign language interpreters, etc.), or placing the student in a special education classroom.
The University of Texas at San Antonio (UTSA) addresses how this applies to their admissions process on their website, refuting the notion that giving accommodations to disabled students as part of Section 504 means lowering academic standards.
“Under Section 504 guidelines, colleges and universities can require some physical qualifications for certain clinical programs,” UTSA said. “For example, it would be reasonable to require students training as pilots or surgeons to have the needed level of visual acuity. However, the same vision level would not necessarily be required of students training as psychiatrists or as airline ground personnel.”
The website goes on to say that a student’s disability may not be considered in the university’s decision to admit the student.
The U.S. Housing and Urban Department (HUD) addresses how Section 504 plays into disabled individuals wishing to rent housing with federal assistance on their website.
HUD said housing providers must use the same objective criteria when screening each potential tenant, regardless of disability.
However, if an individual with a disability is otherwise qualified for housing, housing providers are expected to give tenants reasonable accommodations (such as accessible units) as necessary.
HUD also said providers should not deny housing just because they are uncomfortable with the disabled tenant.
Impact
According to the lawsuit, specifically on page 42 under the “demand for relief” section, the 17 attorneys general seek to declare the inclusion of gender dysphoria in Section 504 as a violation.
Item D of that section appears to ask the judge to declare Section 504 itself unconstitutional — highlighting the differing interpretations of Section 504’s future.
The Iowa Attorney General’s Office told the Des Moines Register that the lawsuit does not seek to demolish Section 504 as a whole.
Section 504 is still enforceable at the federal level because the case was filed in the Northern District of Texas, Lubbock Division.
According to a map on the United States District Court’s website, the Lubbock Division includes the counties of Lamb, Floyd, Lynn, Lubbock, Lynn, Crosby, Hockley, Cochran, Bailey, Hale, Motley, Dickens, Kent, Garza, Scurry, Borden, Dawson, Gaines, Yoakum and Terry.
