A Threat to Disability Rights
Section 504 of the Rehabilitation Act of 1973 under attack
Audio transcription of this post below
Recently dozens of people from around the state of Montana attended a rally at our state Capitol in Helena. They were there because their rights to live, learn, work and receive medical care in their communities are being threatened.
In September, 17 states’ attorneys general filed a lawsuit in a federal court in Texas challenging the constitutionality of Section 504 of the Rehabilitation Act of 1973 based on its inclusion of people experiencing gender dysphoria.
The intent of the Rehabilitation Act was to mandate access for people with disabilities to all governmental entities and those receiving federal funding and to prohibit discrimination based on a person’s disability. Sounds good on paper. However, the original act had little impact — there were no regulatory checks or enforcement when reasonable accommodation was not provided.
Section 504 of the act enhanced the law’s language to enforce accessibility requirements for any new construction or alterations — like curb cuts, handrails, ramps and provisions such as alternative language options including Braille and American Sign Language. It also strengthened the rights of disabled people against discrimination in employment, health care, education and elsewhere.
In 2024, the Biden administration expanded protections under the Affordable Care Act to include people experiencing gender dysphoria and, by extension, protections under several civil rights laws including Section 504 of the Rehabilitation Act.
The recent lawsuit argues that the U.S. Department of Health and Human Services’ ruling under Section 504 and its expansion to transgender people is regulatory overreach exceeding HHS’s statutory authority.
But here’s the thing. Among the plaintiffs’ demands: “Declare Section 504 unconstitutional.”
This is a thinly veiled attempt to dismantle nearly all protections for people with disabilities. If they win, the ramifications will reverse hard-won disability rights fought for over decades. It would affect disabled people’s access to education, health care, employment, housing and transportation. It will dismantle their ability to challenge discrimination and significantly weaken oversight of disability-rights violations.
Many of the attorneys general simply signed on to the lawsuit with a single sentence. But I live in Montana where Attorney General Austin Knudsen provided a 24-line opinion in which he argued that the rule’s requirements would be financially burdensome for the state and is federal overreach “fundamentally altering the State’s systems, programs and activities as well as its sovereign administration.” In other words, Knudsen considers it contrary to the 10th Amendment of the U.S. Constitution.
And in an email to a local television station about the potential effects this action would have on education, Knudsen wrote this: “The federal government cannot use education funding to coerce states into accepting woke policies.”
In January, President Trump signed an executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” In it Trump defines male and female as the biological gender a person is at conception saying, “‘Gender identity’ reflects a fully internal and subjective sense of self, disconnected from biological reality ...” Note the quotes around gender identity which is how it appears in the order that prohibits any federally funded entity to refer to gender in any terms other than male or female. This essentially dismantles protections for transgender people and is a terrific blow to the LGBTQ+ community.
Though, as such, the attorneys general have, for now, backed off the lawsuit though they have asked for a judge’s stay on the suit be continued. They plan to file bimonthly status reports and wrote in their April 11th brief that they do not seek to restrain federal funding for disabled people “on the basis that Section 504 of the Rehabilitation Act is unconstitutional,” which contradicts the demands of the original lawsuit.
There are other threats to disability rights on national and state levels. If this concerns you, I recommend you follow the Administration for Community Living or your state's Center(s) for Independent Living which you can find here.
Stay tuned, stay informed, stay active.
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THANK YOU, Jodi, for writing this articulate, fact-based article. Having spent 16 years teaching secondary students with IEPs and 504 plans, it infuriates me that a political agenda based on ignorance, hate, and discrimination intends to dismantle the disability protections we've worked so hard to enact and support. At every turn, the message is clear - the leadership of this country does NOT care about our kids. Like you, I will continue to speak out on behalf of the rights of ALL Americans.