Disability Rights Under Attack … AGAIN
The Texas v. Kennedy (formerly Texas v. Becerra) lawsuit threatens disability rights
You can listen to this story here:
In May last year, I wrote about a lawsuit filed by 17 states’ attorneys general in federal court in Texas challenging the constitutionality of Section 504 of the Rehabilitation Act of 1973. The basis for the argument was language in the preamble to the regulation passed under the Biden administration to require entities (read states) receiving federal funding to provide services for people with disabilities in the least restrictive environment – in other words, in the community – whenever feasible.
In the original suit, the states argued against the inclusion of gender dysphoria as a disability under Section 504. But the lawsuit went further asking the court to find Section 504 unconstitutional with no modifiers. If successful, this bid would have devastating impacts on the disability community rolling back decades of hard-won civil rights. Rights including the right to receive services in the community rather than being unnecessarily institutionalized which, by the way, is the basis of the Supreme Court’s 1999 Olmstead decision.
In April 2025, U.S. Secretary of Health and Human Services Robert F. Kennedy Jr. filed a memo stating that because gender dysphoria was only mentioned in the preamble to the regulation and not within the regulation’s text, it “does not have the force or effect of law.” So for now, gender dysphoria is not a covered condition under Section 504.
And with that, the lawsuit might have died on the vine.
Alas, though nearly half the states named on the original lawsuit have dropped the case, nine – Texas, Florida, Indiana, Kansas, Louisiana, Missouri, South Dakota, Alaska and Montana – are continuing their attack on disability rights.
Despite the premise of the initial complaint being moot based on Kennedy’s memo, the states filed to keep the suit alive. And in an April status report, the states claim they no longer intended to challenge the constitutionality of Section 504.
But that doesn’t mean they are backing down from attempts to dismantle disability rights.
On January 23, the nine remaining states filed an amended complaint with the U.S. District Court in Lubbock, Texas, in which they argue that the Biden-era rule “upends decades of federal disability law.”
Among other things, they contend that:
the rule exceeds the authority of the U.S. Department of Health and Human Services and goes beyond “the legitimate scope of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.”
its mandate is “broad and nebulous” requiring states to “provide unlimited community-based services in every setting to eliminate institutionalization …”
it allows discrimination cases to be filed “when no institutionalization or segregation has actually occurred.”
it does not consider increased costs and workforce shortages “with the federal government micromanaging down to a personnel level.”
it could result in states losing their Medicaid funding.
If the court rules in favor of the states, it would undo hard-won rights under Section 504 making it difficult for some people with disabilities to continue to live in their communities and could result in their being forced into institutions despite their desires to live in their own homes and communities.
However, the rule simply codifies the Supreme Court’s Olmstead decision which states that nobody “with a disability shall, ‘by reason of such disability,’ be excluded from participation in, or be denied the benefits of, a public entity’s services, programs, or activities.” As such, the additional rule to Section 504 regulates how public entities are required to treat people with disabilities. And thus it provides a legal solution to discrimination without the need to file a lawsuit carrying with it legal fees, the cost of which might dissuade people from acting.
And that’s exactly how the plaintiffs in this case would like it to stay.
There’s more information about this lawsuit on the Disability Rights Education and Defense Fund (DREDF) website. And if you want to learn how you can address this renewed attack on the civil rights of disabled people, DREDF will hold a free online briefing tomorrow, Wednesday, February 26, at 10:30 a.m. PT (11:30 a.m. in Montana). You can attend by registering here.
And just a note, I vow to never put these newsletters behind a paywall. But they do take time and energy to create. If you appreciate this work, please consider contributing by clicking on the Buy Me a Tree Button below. And thanks for reading, sharing, commenting and especially by taking action. We’re all in this together.
Thank you for the updated, Jodi. Keep them coming! 🙏