Last year, Republican attorneys general in 17 states sued the U.S. Department of Health and Human Services (HHS), asking courts to declare Section 504 unconstitutional. Section 504 is part of the Rehabilitation Act of 1973. It protects people with disabilities from discrimination and gives them equal access to federally funded services such as education, employment and healthcare.
The lawsuit came in the wake of the Biden administration’s update to Section 504 to include gender dysphoria as a disability in some circumstances. It received intense criticism from disability rights advocates who said it threatened to upend more than 50 years of established law.
Now the states have released a status report that seemingly walks back the original case. They noted that it was not their intention to declare Section 504 unconstitutional, writing: “Plaintiffs clarify that they have never moved—and do not plan to move—the Court to declare or enjoin Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, as unconstitutional on its face.”
However, disability advocates warn that this status report does not actually mean anything substantial and, in fact, disability rights are still under threat.
“The attorneys general obviously got a lot of pushback,” says Alison Barkoff, a professor at George Washington University who led HHS’s Administration on Community Living under the Biden administration. “Some responded to the pushback saying that they were going to drop the claim. That didn’t happen. They didn’t change the complaint. They didn’t drop out of the case.”
In other words, the status update is little more than legalese. It says, “The context of the entire Complaint . . . is an as-applied challenge to any purported application of Section 504 to funds that are not authorized by the Rehabilitation Act.”
What does this mean? According to Barkoff, the states are saying that Section 504 only applies to the handful of programs that the Rehabilitation Act directly funds, such as state vocational rehabilitation programs and some employment programs. She points out that healthcare programs are funded through Medicare and Medicaid, and educational services such as 504 plans are funded through the Department of Education. These are all still at risk if the states were to win the court case.
She notes that the court required a status update by February 25, and this was filed a few days earlier—probably because of the pushback the original case received.
Currently, the case is on pause at the request of both the states and HHS.
What happens next?
There are a few possible paths forward.
First, HHS could decide it will step in to defend Section 504. The current Trump administration, according to Barkoff, has made its stance on gender dysphoria very clear, and it is unlikely that HHS will defend anything regarding gender dysphoria. However, it’s unclear what the implications of this will be for Section 504 as a whole.
Second, HHS could decide not to fight and another party, such as a disability rights organization, could step in to defend Section 504.
Third, during the pause, HHS could decide to change Section 504 to address the states’ grievances in hopes that it’s enough for the states to drop the lawsuit.
Barkoff was unwilling to speculate on the future of disability rights, she but urges people to contact their state attorney general and educate him or her on the importance of Section 504.
“The case that has been filed is very concerning and we have to take it seriously,” she says.
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