In an unprecedented challenge that could erase critical protections for people with disabilities, including students in public schools, Louisiana Attorney General Liz Murrill is suing the U.S. Department of Health and Human Services (HHS), arguing Section 504 of the Rehabilitation Act of 1973 is unconstitutional.
Murrill joined Texas and fifteen other states in a lawsuit filed late last month. The suit is motivated by the contention that gender dysphoria – the clinically recognized distress caused when gender assigned at birth doesn’t match a person’s gender identity – should not be considered a disability under section 504 of the Rehabilitation Act of 1973.
A favorable ruling would dismantle much of the nation’s key disability law, though the transgender aspect of this suit has become the focus of many. “Sadly, many won’t get past the gender dysphoria piece,” said longtime disability advocate Mary Jacob, who noted that on page 37 of the lawsuit, the states assert that the court should find the entire Section 504 unconstitutional.
“It’s a veiled attempt to destroy the basic disability rights and protection individuals with disabilities have worked so hard to receive,” Jacob said.
Making trans protections clear through disability law
In an increasingly polarized country, the lawsuit follows a flurry of anti-LGBTQ+ legislation, some of which have been met by successful lawsuits by transgender advocates, who claimed prote ctions under the Rehabilitation Act and the ADA.
Though the Rehabilitation Act provides protections within state and local governments that receive federal funding. The ADA, passed 17 years after the Rehabilitation Act, goes further, covering the same governments, including those that don’t get federal aid, many private employers, and also extends to private “public accommodation” businesses like cafes, hotels, movie theaters, and doctor’s offices and commercial facilities like factories, office buildings and warehouses.
And in recent years, the ADA seemed like a new frontier for transgender people seeking fair treatment in schools, workplaces, and public accommodations.
In 2017, Kate Lynn Blatt, a transgender woman who was discriminated against while working a retail job in Pennsylvania sued and won, when a federal court ruled for the first time that gender dysphoria constitutes a protected disability under the ADA. Other such victories followed.
To some, Blatt’s was an unexpected victory, because – thanks to the opposition of two senior senators when the ADA was debated as a bill on the Senate floor – the landmark law explicitly excludes three medical conditions: “transvestism,” “transsexualism” and “gender identity disorders not resulting from physical impairments.”
Then in May, the Biden administration’s HHS implemented a rule that basically codified the findings from the courts, making clear that gender dysphoria can be considered a disability under federal anti-discrimination laws.
But now these lawsuits, brought by attorneys general from 17 states, could reverse the recent gains made by transgender advocates, through the use of some of the same disability protections.
Such a ruling could further erode civil rights protections across the country by opening the grounds to challenge other laws that prohibit discrimination on other fronts – including sex protections through Title IX; racial, color and national origin protections through Title VI and Fair Housing Act. Stripping the requirement that federally funded local and state agencies must follow federal nondiscrimination law would leave the federal government without a key tool to hold agencies accountable to nondiscrimination law. That could have a cascading effect on all similarly enforced civil rights protections.
In recent years, some state attorneys generals have investigated medical providers, to check provision of transgender medical care. Framed as civil investigations seeking to determine if there has been misuse of Medicaid funds (Tennessee) or violations of consumer protection laws (Indiana and Missouri), these campaigns investigate medical providers on their provision of transgender medical care.
Such investigations can cause stress among transgender people, especially children, according to an April U.S. Senate committee report on the matter entitled “How State Attorneys General Target Transgender Youth and Adults by Weaponizing the Medicaid Program and their Health Oversight Authority.”
In the days after investigations of medical providers in Tennessee and Kentucky became public, crisis mental-health services in the two states skyrocketed, according to Senate hearing documents. Behavioral-health provider Rainbow Youth Project, which usually receives 100 calls from youth during a typical month, responded to 376 acute mental health crises from LGBTQ+ youth in the area in a single day, according to Senate research.
The now-controversial 504 accommodation
Louisiana youth also feel the pressures of an anti-LGBTQ+ atmosphere.
Peyton, now 17 years old, has had an academic 504 plan since she was in pre-K. In 11th grade, she changed to a gender-neutral name. She also qualified for other – more controversial – 504 accommodations.
No one blinks at her longtime accommodations, giving her time-and-a-half for academic testing. But at times, including once over the loudspeaker at school, people still call out her “dead name,” the birth name of a transgender person who has changed their name as part of their transition.
Why is one so much easier to protect, she asked. “They are both humanities issues. It literally feels just as inhumane for me to not get my accommodations on a test as it does to hear my (incorrect) name over the loudspeaker.”
Both are worthy of accommodations, according to the Biden administration’s interpretation of the Rehabilitation Act and ADA federal disability law. But some outspoken Louisiana public officials see them differently.
Earlier this year, Louisiana legislators passed a swath of bills that investigated, stopped care, or deleted accommodations for the LGBTQ+ community, and specifically LGBTQ+ youth, including a bill that restricts discussion of gender identity and sexual orientation in public schools and another that bars youth from using their preferred names and pronouns in public schools.
Another new state bill restricts which bathrooms, changing rooms, and sleeping quarters transgender people can use in public buildings and facilities.
‘I didn’t know if I could tell you’
This summer, one of Peyton’s friends changed names as well. But because of the flurry of new laws, they started school this fall believing that they would be unable to tell their teacher the new name.
So the teacher started out the year using the teen’s birth name. But students in class used the new name – and so the teacher caught on and asked about the discrepancy.
The student said, “I didn’t know if I could tell you because of the bills. You didn’t ask — so I thought I wasn’t allowed to (tell you).”
For Sam, a high school junior, living in Louisiana right now is stressful. But she’s felt anxiety for years, as she tried to deal with changes that some may only see through a change in pronouns.
Jacob, the disability advocate, said that Section 504 protects people with disabilities who assert their right to accommodations from retaliation. And while no one retaliated against Sam, she could not get accommodations with the sort of speed she needed.
After years of trying, she finally qualified for a 504 plan for mental health. This helps her teachers support her in class. But while she was trying to prove her need for accommodations to the people who moderate 504 plans, through meetings with psychiatrists and other mental-health professionals, she was earning Ds and Cs on her permanent transcript. “People were not seeing I was struggling and needing help,” she said.
“If I’d gotten that help earlier I’d be more prepared to apply to college and get to a place where I can succeed,” she said.
“Eliminating it would have dire consequences on so many people,” Jacob said.
A ruling in favor of the suit would “gravely impact” the roughly 7% of Louisiana students on 504 plans, Jacob estimates. And the effect could be compounded for many LGBTQ+ students — who are twice as likely as the overall student population to have a medically documented disability, according to the Human Rights Campaign.
For Lee, a senior, these are life-and-death issues that go beyond pronouns and even mental-health in classrooms, to the hormone-replacement therapy (HRT) he began last year with the support of his family. “I dreamed of starting hormone replacement therapy for so long. And it truly did save my life,” he said. His distress at living with the gender assigned at birth was so heightened, he fears he may not have made it to graduation without it.
But on Jan. 1, because he is 17, his care will be illegal in Louisiana. “It’s just banned. You can’t do it, period,” he said. The law barring Louisiana minors from receiving HRT went into effect this year — but throughout 2024, children already undergoing treatment can continue, as long as doctors are reducing the dosage. Come 2025, hormone-replacement therapy will be completely banned.
Without access to the therapy, “Kids are going to kill themselves,” Peyton said, emphatically.
Lee plans to get treatments out of state. “But what about kids whose families can’t afford that?” he asked. He fears that, among affected Louisiana teens, despair may increase dramatically.
An unprecedented challenge
At the center of the new lawsuit, conservative-leaning attorneys general argue that the Biden administration went too far with its rule including gender dysphoria as a recognized disability under the Section 504 of the Rehabilitation Act. The suit argues gender dysphoria is not a disability.
States foot the responsibility and some of the bills for accommodating disabilities, including now gender dysphoria,, the AGs contend in the suit. They argue that Section 504’s “universal scope unfairly surprises States by retroactively adding conditions to pre-existing federal spending programs.”
The Louisiana AG’s office did not respond to questions about the decision to join the lawsuit and what the loss of protections would mean for transgender people, youth and adults, as well as many other Louisianans diagnosed with other, unrelated disabilities covered until Section 504.
The Biden-administration rule change in May requires federally funded state and local agencies to allow people with a gender-dysphoria diagnosis to use appropriate restrooms and address them with preferred pronouns, among other accommodations
At its most basic level, the 50-year-old Rehabilitation Act law requires public schools to give students with disabilities accommodations, and that government buildings with stairs include ramps or and elevators so people in wheelchairs can access them. The law also requires employers make “reasonable accommodations” for people with disabilities, such as a lower desk, and that schools provide students everything they need to receive what’s known as “a free and appropriate public education (FAPE)” despite physical, emotional or mental impairment. That can include accommodations such as the provision of classroom aides, speech therapy, calculators, writing utensils with better grips, extra time on tests and schoolwork or other options to accomplish the same goal, such as the chance to opt out of print reading by listening to audiobooks or the verbal administration of tests.
Under FAPE – free appropriate public education – the bedrock civil rights protection schools must provide special education to ensure students are learning as much as they can, and progressing in their education.
Without section 504, students would still have some discrimination protections under the Americans with Disabilities Act, but the protections aren’t specifically oriented to learning, said civil rights lawyer Hector Linares of the Loyola Law Clinic.
“It does not guarantee a ‘free appropriate public education,’” Linares said.
When Jacob, the disability advocate, thinks of Section 504, she thinks of basic civil rights protection against discrimination. “Every time you walk up to a building and see a ramp – that’s 504,” she said. “The ramps were put there for people with mobility issues – but the reality is, you can see just as many moms pushing strollers using them.”
While the new AG lawsuit is being described as “the gender dysphoria lawsuit,” its effects could be far more widespread, she said. A favorable ruling could upend school and workplace protections for people with a wide range of disabilities, she said.
“A lot of people think about Section 504 as a K-12 issue, but it’s so much more than that,” Jacob said. “If Section 504 of the Rehabilitation Act is found to be unconstitutional, the impact will be dire for many.”