by Autumn Christafore, Associate Member, University of Cincinnati Law Review Vol. 93
I. Introduction
Recent litigation brought by Texas and seventeen other states seemingly threatens the rights of disabled Americans.[1] Texas v. Becerra, filed in the fall of 2024, argues that the Biden Administration’s final rule embracing “gender dysphoria” as a potential disability under Section 504 of the Rehabilitation Act (“Section 504”)—which prohibits employers from participating in disability-based discrimination if they receive federal financial assistance—exceeds the agency’s statutory authority and is unconstitutional.[2] The complaint does not end here; instead, it goes a step further and argues that Section 504 is unconstitutional. If true, the repeal of this section could have perilous consequences for individuals with disabilities in a multitude of areas.
The involved states’ attorneys general (“AGs”) have faced public backlash as the disability community continues to voice their outrage and concern. A few of the AGs are insistent that the lawsuit will not affect existing disability protections and only seeks to bring regulations “back to what they were” before gender dysphoria was added to the law.[3] Moreover, many expect the Trump administration to reverse the final rule, prompting the states to drop their lawsuit.[4] Yet, despite reassurances from the states that they do not wish to disturb Section 504, they have not amended the lawsuit accordingly. This suggests that something bigger may be at play in this suit.
This article discusses the issues and arguments presented in Texas v. Becerra as well as the potential motives behind the lawsuit. Section II begins with background on the Rehabilitation Act of 1973, specifically Section 504, and the Department of Health and Human Services’ (“HHS”) highly contested final rule. Then, Section II discusses how agency rules are typically challenged and the Becerra complaint. Next, Section III notes that the states can achieve their goal without implicating Section 504, and surmises that Section 504 was implicated in this suit as part of a larger policy agenda. Finally, Section IV concludes that this lawsuit may be part of a plan to roll back the scope of the anti-discrimination statutes, and emphasizes its importance going forward.
II. Background
The Rehabilitation Act of 1973 (“Rehab Act”) was the first major federal disability rights law passed in the United States and served as the model for the Americans with Disabilities Act (“ADA”), which prohibits employment discrimination in the private sector against qualified individuals with disabilities.[5] The passage of the Rehab Act provided many qualified individuals with disabilities the ability to enter the federal and federal contractor workforce for the first time.[6] It includes two core provisions, Section 501 and 503, which exclusively address employment discrimination against individuals with disabilities in federal employment and employment by certain federal contractors and subcontractors.[7]
A. Section 504
An additional key provision is Section 504, which applies broadly to employers and organizations that receive financial assistance from the federal government.[8] Specifically, it applies to any “program or activity” receiving federal financial assistance, including:
(1)A department, agency, special purpose, district, or other instrumentality of a State or of a local government; or
(2) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State of local government entity) to which the assistance is extended, in the case of assistance to a State or local government; . . . any part of which is extended Federal financial assistance.[9]
Section 504 does not contain an explicit list of disabilities; instead, it incorporates the ADA’s definition of disability—“persons with a physical or mental impairment which substantially limits one or more major life activities.”[10] Persons with a history of such an impairment that substantially limits one or more major life activity are also covered by this definition.[11] A major life activity includes caring for one’s self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning.[12] For the purpose of receiving services, education, or training, a qualified individual with a disability refers to persons who meet the normal and essential eligibility requirements.[13] For employment purposes, a qualified individual with a disability refers to persons who, with reasonable accommodation, can perform the essential functions of the job for which they have applied or were hired to perform.[14]
Section 504 explicitly protects “qualified individuals with disabilities” and forbids employers and organizations from excluding or denying individuals with disabilities equal opportunity to receive program benefits and services.[15] Section 504’s prohibitions apply to service availability, accessibility, delivery, employment, and the administrative activities and responsibilities of organizations receiving federal financial assistance.[16] As a result, a recipient of federal financial assistance may not, based on disability:
Deny qualified individuals the opportunity to participate in or benefit from federally funded programs, services, or other benefits; deny access to programs, services, benefits or opportunities to participate as a result of physical barriers; deny employment opportunities, including hiring, promotion, training, and fringe benefits, for which they are otherwise entitled or qualified.[17]
B. HHS’s Final Rule
On May 9, 2024, the HHS issued a final rule titled “Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance” (“Final Rule”).[18] The Final Rule aimed to bolster protections and update regulations for Section 504 programs and activities that receive HHS funding.[19] This includes nonprofit entities, educational institutions, businesses, and individuals.[20]
Of the amendments made in the Final Rule, the most contested is the preamble, an unenforceable section of the rule, embracing the idea that “gender dysphoria” may constitute a disability under Section 504.[21] The basis for this is found in the United States Court of Appeals for the Fourth Circuit’s recent decision in Williams v. Kincaid.[22] In Williams, the court noted that “gender dysphoria” was not used in Section 504 or the ADA, nor the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) at the time the statutes were passed.[23] However, in 2013, the phrase was changed in the DSM from “gender identity disorder” to “gender dysphoria.”[24] The Williams court reasoned that this revision reflected a shift in medical understanding and as a result, “gender dysphoria” is not included in the scope of the exclusion for gender identity disorders.[25] Thus, if a plaintiff can prove, as the plaintiff in Williams did, that gender dysphoria results from a physical impairment, it may be considered a disability under Section 504 and the ADA.[26]
During the Final Rule’s notice-and-comments period, religious organizations and state officials objected to the Department’s inclusion of gender dysphoria as a potentially covered disability.[27] One of the most prevalent arguments against the proposed rule was that it would adversely impact religious groups because Section 504 does not include an exemption for religious entities.[28] HHS was unpersuaded by this argument and noted that while Section 504 does not contain provisions regarding religious freedom and conscience, they are protected by other HHS statutes and regulations, with which the Department will comply.[29]
As a result, HHS declined to remove the term from its preamble and published the rule as is.[30] The Final Rule noted that HHS will approach gender dysphoria as it would any other disorder or condition.[31] This means, that if the “disorder affects one or more body systems, or is a mental or psychological disorder, it may be considered a mental impairment.”[32] Such an inquiry requires a fact-based, individualized determination, but if the facts are right, the Final Rule leans into the idea that gender dysphoria may constitute a disability under Section 504 and the ADA.[33]
C. Reversing or Revising Agency Regulations
Formal agency rules can only be amended or reversed through a formal rulemaking process, which requires a notice-and-comment period and the development of a full administrative record.[34] Consequently, when a state, individual, or organization feels that it is injured by an agency’s final rule it typically challenges it in federal court because it is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.”[35] To survive judicial review under the “arbitrary and capricious” standard, the new rule’s record must display a “reasoned explanation” for the revision that goes beyond a change in presidential administrations.[36]
It is important to note that when an agency rule is facing litigation, the Department of Justice (“DOJ”) does not always vigorously defend the rule in court.[37] This is especially true during a change in administration, which “presents the opportunity to reevaluate litigation priorities, change tactics, and revise legal interpretations to bring them more in line with new policy goals.”[38] When a challenge is pending, the DOJ may ask the court to stay the proceedings or remand the rule to allow the agency to reconsider.[39] Further, if a court invalidates all or part of a rule, the DOJ does not have to pursue an appeal, which would force the agency to rewrite or drop the rule altogether.[40] Alternatively, if parties do not wish to pursue litigation, they could petition Congress to revoke the rule or repeal the agency’s statutory authority to issue a rule, as Congress retains the option to weigh in on agency rules at any time.[41]
D. Texas v. Becerra
On September 26, 2024, Texas, joined by sixteen other states, filed a lawsuit against Xavier Becerra, and now Robert F. Kennedy Jr., in their official capacities as Secretary of HHS.[42] The complaint alleges that the Final Rule upends decades of established federal disability law by unlawfully changing the express terms of both Section 504 and the ADA.[43] The complaint also alleges that this change will expose the states and their agencies to loosing federal funding if they do not comply.[44]
The states’ biggest issue with the Final Rule is is the addition of “gender dysphoria” to the definition of “disability” under Section 504 and the ADA.[45] The states find this contradictory to the express language of the Rehabilitation Act and the ADA, which established as a matter of law that “transvestism, transsexualism . . . and gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” are not protected disabilities.[46]
The complaint contains four claims for relief. Count One asks the court to find the Final Rule unlawful because it exceeds statutory authority by including “gender dysphoria” in the definition of “disability,” despite the ADA’s specific exclusion of the term.[47] Count Two asks the court to set aside the agency action, as required by the Administrative Procedure Act because it is arbitrary and capricious.[48] Count Four alleges that the Final Rule is unconstitutional because it unfairly surprised state recipients by extending Section 504’s disability protection to include gender dysphoria.[49]
In Count Three, the states ask the court to find Section 504 an unconstitutional use of Congress’s spending power.[50] The states note that in South Dakota v. Dole, the Court set forth four requirements for Congress to abide by when utilizing its Spending Power.[51] Under Dole, the spending power must be: 1) in pursuit of the “general welfare”; 2) the condition on the State’s receipt of federal funds must be unambiguous, enabling the states to exercise their choice to knowingly participate; 3) the conditions must be related to the federal interest in particular national projects or programs; and 4) it cannot violate any other constitutional provisions.[52] The states believe Section 504 fails three of the four Dole factors—the ambiguity, relatedness, and otherwise constitutional requirements.[53] The states assert that the constitutional violation posed by this invalid spending legislation can be remedied only by injunctive relief that precludes federal officials from withdrawing funds for noncompliance.[54]
On February 19, 2025, the parties filed a Joint Status Report, requesting the court to continue the stay of briefing deadlines, and in turn, the parties will continue to file Joint Status Reports on the twenty-first of each month.[55] The states also used this report to clarify that their complaint does not seek to restrain the disbursement of federal funds from HHS on the basis that the statute is unconstitutional or to otherwise prevent the federal government from allocating spending or applying the provisions of the Rehabilitation Act to any recipients of such funds. Rather, the states claim their challenge to Section 504 is an “as-applied challenge to any purported application of Section 504 to funds that are not authorized by the Rehabilitation Act.”[56] This means the states are not claiming Section 504 is unconstitutional on its face, but instead believe it is unconstitutional “as-applied” to them in this specific context.
II. Discussion
Disability advocates argue that Becerra is just the latest attempt in the broad push to dismantle disability protections, disguised as a distaste for “gender dysphoria.”[57] This comes after the Trump Administration removed Diversity, Equity, and Inclusion (“DEI”) programs from the federal government, which are often written to also include “accessibility” programs. Knowing that the Final Rule only mentions gender dysphoria in the rule’s preamble, an unenforceable section of the regulation that can be rejected by new administrations, this explanation is not unwarranted.[58] Yet, it appears that something more may be at play here. This article suspects that Becerra may not be about disability rights at all, and is instead an attempt to limit the scope of the anti-discrimination statutes. Thus, Becerra raises the question of whether the challenge to Section 504 is truly an attempt to dismantle protections for disabled Americans, or whether it is part of an even larger policy agenda.
A. The States Could Challenge The Final Rule Without Implicating Section 504
Counts One, Two, and Four of Becerra allege the Final Rule exceeds statutory authority and is not in accordance with the law, that the Final Rule is arbitrary and capricious, and that the Final Rule is unconstitutional.[59] This is in accordance with the typical judicial challenges made to agency rules. The states could have left the suit at this and likely succeeded, as the Trump administration is unlikely to defend the Final Rule, and even less likely to support the section on gender dysphoria. Trump’s Executive Order recognizing “male” and “female” as the only recognized genders further supports this assertion.[60] Thus, if the court ruled in favor of the states, President Trump’s HHS would likely rewrite the rule or drop it altogether.
However, it is also possible that Becerra will not make it this far. The language primarily at issue in the suit appears in the Final Rule’s preamble and is not technically enforceable. Further, the language never explicitly defined gender dysphoria as a disability. Rather, the language leaned into the idea that gender dysphoria may constitute a disability if the condition presents with the physical manifestation of symptoms, as required by Section 504 and the ADA.[61] This means the states cannot be forced into treating gender dysphoria as a disability, as they allege in their complaint.
This Section shows how the states could challenge the final rule, and potentially achieve their desired goal without implicating Section 504. Yet, the status report filed on February 19, 2025 conveys that the states still intend to pursue their Section 504 claims, depsite the public backlash and the AG’s assurances that they do not intend to dismantle disability protections for Americans.[62] This suggests that something bigger—such as an attempt to limit the expanded scope of the federal anti-discrimination lawsuits—is at play in this lawsuit.
B. The Bigger Picture
The Court has expanded the federal anti-discrimination laws in recent years to include protections for sexual orientation, gender identity, and pregnancy-related conditions.[63] Most notably, in Bostock v. Clayton County, the Supreme Court held that “an employer who fires someone simply for being homosexual or transgender” violates Title VII’s prohibition against sex discrimination.[64] This decision was vastly celebrated by proponents and vehemently opposed by critics—namely the Heritage Foundation and various other organizations (“Organizations”).[65] The Organizations are displeased with the Court’s decision in Bostock as well as the push for the inclusion of DEI and other gender-inclusive terms in recent agency rules and are seeking to stop the expansion of the scope and definition of sex discrimination.[66]
The Organizations have set forth a playbook—“Project 2025”—discussing their distaste for such policies and including plans for accomplishing their goals.[67] In this plan, they push for the removal of DEI and other gender-inclusive terms from all federal rules, regulations, and legislation in existence.[68] They also push to restrict the application of Bostock by directing agencies to withdraw “unlawful notices and guidances” purporting to apply Bostock’s reasoning, rescind regulations prohibiting discrimination based on sexual orientation, gender identity, transgender status, and sex characteristics, and to refocus enforcement of sex discrimination laws on the “biological binary meaning of ‘sex.’”[69] Specifically, the playbook calls for the next administration’s HHS to restore Section 504 and other regulations that “contradict the scope of the statute” by imposing nondiscrimination based on sexual orientation and gender identity.[70]
These policy changes cannot be accomplished by the President alone, as they require acts of Congress and the formal agency rulemaking process, hence why much of this agenda has taken place in the courts.[71] Becerra is yet another attempt to enforce this agenda through the courts, as HHS’s Final Rule falls into the Organization’s category of detested regulations. When considering Becerra in this light, it is possible that the State’s ultimate goal is not to injure disabled Americans by rolling back their protections, but instead is part of a larger policy initiative seeking to limit the scope of the anti-discrimination statutes.
IV. Conclusion
This Article does not discount that disability protections may be at risk in this suit. Rather it seeks to decode the lawsuit and bring awareness to the potential hidden motives that drive it. The purpose of this suit could be to make accessibility harder for marginalized individuals, such as disabled individuals. But, it could also be a part of a larger plan to roll back the scope and protections of the anti-discrimination statutes that have been extended to include protections for sexual orientation and gender identity, and disability rights are simply caught in the crossfire. Regardless of the suit’s true intentions, it will be one to watch going forward.
[1] The sixteen states include: Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah, and West Virginia.
[2] Texas v. Becerra, No. 5:24-cv-00225 (N.D. Tex. filed Sept. 26, 2024), sub nom. Texas v. Kennedy, No. 5:24-cv-00225-C (filed Feb. 19, 2025).
[3] Anna Claire Vollers, GOP-led lawsuit that could dismantle disability protections draws public backlash, Stateline (Feb. 20, 2025, 5:00 AM), https://stateline.org/2025/02/20/gop-led-lawsuit-that-could-dismantle-disability-protections-draws-public-backlash/.
[4] Id.
[5] Employment Protections Under the Rehabilitation Act of 1973: 50 Years Protecting Americans with Disabilities, U.S. Equal Employment Opportunity Commission, EEOC, https://www.eeoc.gov/employment-protections-under-rehabilitation-act-1973-50-years-protecting-americans-disabilities (last visited Apr. 1, 2025).
[6] Id.
[7] Id.
[8] Section 504 of the Rehabilitation Act of 1973: Frequently Asked Questions, U.S. Dep’t of Health and Hum. Serv. (June 2006), https://www.hhs.gov/sites/default/files/ocr/civilrights/resources/factsheets/504.pdf.
[9] Texas v. Becerra, No. 5:24-cv-00225 at 4 (N.D. Tx. filed Sept. 26, 2024), sub nom. Texas v. Kennedy, No. 5:24-cv-00225-C (filed Feb. 19, 2025); 29 U.S.C. § 794(b).
[10] Section 504 of the Rehabilitation Act of 1973: Frequently Asked Questions, supra note 8.
[11] Id.
[12] Id.
[13] Id.
[14] A reasonable accommodation requires an employer to take reasonable steps to accommodate a person’s disability unless it would cause the employer undue hardship; Id.
[15] Id.
[16] Id.
[17] Id.
[18] Texas v. Becerra No. 5:24-cv-00225 at 1-2 (N.D. Tx. filed Sept. 26, 2024), sub nom. Texas v. Kennedy, No. 5:24-cv-00225-C (filed Feb. 19, 2025); HHS Issues Final Rules Regarding Nondiscrimination, N.J. Ass’n of Mental Health and Addication Agencies (May 6, 2024), https://www.njamhaa.org/2024-05-06-hhs-issues-final-rules-regarding-nondiscrimination.
[19] HHS Issues Final Rules Regarding Nondiscrimination, supra note 18.
[20] Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 40066 (May, 9, 2024).
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Fact Sheet 5: Reversing or Revising Agency Regulations, Generally, Gov’t Info. Watch, https://www.govinfowatch.net/fact-sheet-5-reversing-or-revising-agency-regulations-generally/ (last visited March, 03, 2025).
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Texas v. Becerra, No. 5:24-cv-00225 (N.D. Tx. filed Sept. 26, 2024), sub nom. Texas v. Kennedy, No. 5:24-cv-00225-C (filed Feb. 19, 2025).
[43] Id. at 1.
[44] Id. at 1-2.
[45] Id. at 1.
[46] Id. at 2.
[47] Id. at 33-34.
[48] Id. at 35-36.
[49] Id. at 40-41.
[50] Id. at 37.
[51] South Dakota v. Dole, 483 U.S. 203 (1937); Texas v. Becerra, No. 5:24-cv-00225 at 37 (N.D. Tx. filed Sept. 26, 2024), sub nom. Texas v. Kennedy, No. 5:24-cv-00225-C (filed Feb. 19, 2025).
[52] Dole, 483 U.S. at 207-08.
[53] Becerra, No. 5:24-cv-00225 at 37-40.
[54] Id.
[55] Id.
[56] Id.
[57] Section 504 potentially under threat due to lawsuit from 17 Republican attorneys general, Daily Moth (Feb. 14, 2025), https://www.dailymoth.com/blog/section-504-potentially-under-threat-due-to-lawsuit-from-17-republican-attorneys-generalnbsp.
[58] Id.
[59] Becerra, No. 5:24-cv-00225 at 33-41.
[60] Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, The White House (Jan. 20, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/defending-women-from-gender-ideology-extremism-and-restoring-biological-truth-to-the-federal-government/.
[61] Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 40066 (May, 9, 2024).
[62] Becerra, No. 5:24-cv-00225.
[63] See Bostock v. Clayton Cnty., 590 U.S. 644 (2020), Young v. United Parcel Serv., Inc., 575 U.S. 206 (2015).
[64] Bostock, 590 U.S. at 644.
[65] See Kevin Roberts, Mandate for Leadership: The Conservative Promise 584, (The Heritage Found. Ed., 1st ed. 2023).
[66] Id.
[67] Id.
[68] Id. at 4-5.
[69] Id.
[70] Id.
[71] See Project 2025 is Already Underway in the Courts, Democracy Forward, https://democracyforward.org/project-2025-is-already-underway-in-the-courts/ (last visited March, 05, 2025).
Cover Photo by Sasun Bughdaryan on Unsplash.
