States Decline To Drop Lawsuit Threatening Disability Rights Protections

by Michelle Diament

As federal officials look to clarify recent rules designed to bar disability discrimination in health care, a long-simmering lawsuit threatens to invalidate them altogether.

The U.S. Department of Health and Human Services wants to alter a 2024 update to regulations related to Section 504 of the Rehabilitation Act. The rule, finalized by the Biden administration, prohibits health care providers from making treatment decisions based on biases about disabilities and mandates increased availability of accessible medical equipment, among other changes.

HHS is seeking to tweak the regulations to specify that gender dysphoria does not qualify as a disability under the rule. The agency said it is responding to “significant confusion” created by language in the rule’s preamble that prompted a lawsuit from Texas and 16 other states.

“By fixing the incorrect language in the preamble, the department is ensuing that no one incorrectly relies on the mistaken interpretation to their detriment,” the proposal states.

HHS issued a notice last April indicating that the preamble language related to gender dysphoria was unenforceable. The latest proposed rule, which is up for public comment through Jan. 20, is an effort to further cement its position.

Several disability rights groups have denounced the Trump administration’s effort to invalidate the preamble language as discriminatory against transgender people.

“The preamble to that rule correctly notes that restrictions that prevent, limit, or interfere with otherwise qualified individuals’ access to care due to their gender dysphoria, gender dysphoria diagnosis, or perception of gender dysphoria, may violate Section 504,” reads a statement from the American Civil Liberties Union, the Bazelon Center for Mental Health Law, the Center for Public Representation, the Disability Rights Education and Defense Fund, Justice in Aging and the National Health Law Program.

Moreover, advocates are concerned that Texas and the other states have not dropped their lawsuit, which could upend the Section 504 regulations as a whole.

“Until the states dismiss their lawsuit, it continues to be a threat to the 2024 update to the Section 504 regulations since their complaint seeks to enjoin the entirety of the regulations,” said Alison Barkoff, a professor at George Washington University who led HHS’ Administration on Community Living under the Biden administration.

The states’ lawsuit generated significant backlash last year because in addition to the gender dysphoria concerns, it sought to completely invalidate Section 504. The states ultimately backed off the broader constitutional claim about the legality of Section 504 and the lawsuit has been paused for months.

In a status report to the U.S. District Court for the Northern District of Texas last week, the states requested that the case remain paused while HHS considers the proposed rule.

Meanwhile, advocates say that the litigation continues to cloud the disability protections provided by the updated regulations.

“Even though the lawsuit is on pause, ultimately, until the attorneys general who filed the suit drop it, the lawsuit remains a threat to disability rights,” said Maria Town, president and CEO of the American Association of People with Disabilities. “The states continue to challenge the entire updated Section 504 regulations. The updated regulations include things like the right to receive services in the community instead of institutions, preventing discrimination in medical care organ transplantation, and in the child welfare system, as well as requiring accessible medical equipment and effective communication.”

In addition to Texas, the other states involved in the lawsuit are Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah and West Virginia.

At this point, Town notes, “each of the 17 attorneys general who filed the lawsuit remain a part of it.” 

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States Decline To Drop Lawsuit Threatening Disability Rights Protections