Image Description: A black and white photo of a crowd of people at the 1993 ADA Anniversary March in New York City. In the front of the crowd is Judy Heumann and Justin Dart. Above them is a banner that reads “Injustice anywhere is a threat to justice everywhere. -Martin Luther King Jr.”
Author: Judith Risch
On September 26, 2024, seventeen states, led by Texas, filed a lawsuit challenging the constitutionality of Section 504 of the Rehabilitation Act of 1973, a civil rights law protecting individuals with disabilities. The lawsuit centers on the inclusion of “gender dysphoria” as a disability under Section 504 and the related regulations. This challenge comes from the changes to Section 504 made by the U.S. Department of Health and Human Services (HHS) earlier in 2024.
The History and Importance of Section 504
Section 504 has been a critical tool in expanding access for individuals with disabilities. It was passed in 1973 after a historic 28-day sit-in at a federal building in San Francisco, where activists demanded that the Department of Health, Education, and Welfare (now the Department of Health and Human Services, or HHS) issue regulations for federally funded programs. The story is documented in the Academy Award-nominated film “Crip Camp”.
Key Differences Between Section 504 and the ADA
Section 504 and the Americans with Disabilities Act (ADA) both protect individuals with disabilities, but they differ in their scope and application:
- ADA applies to most employers, public entities, public accommodations, and other entities, mandating that they provide access and accommodations for individuals with disabilities.
- Section 504, on the other hand, applies specifically to recipients of federal funding, requiring them to provide accessible programs and services for people with disabilities. Additionally, there are similar physical accessibility requirements and employment requirements as with the ADA.
The 2024 Updates to Section 504 Regulations
On May 1, 2024, the HHS finalized updates to Section 504 regulations, aligning them more closely with ADA requirements. Some of the notable changes include:
- Inclusion of provisions related to service animals and effective communication, consistent with the ADA.
- New standards for medical diagnostic equipment, including adjustable-height exam tables.
- Clear accessibility requirements for websites, mobile applications, and kiosks.
These updates apply to any entity receiving federal financial assistance from HHS, including many colleges and universities. Even institutions that do not have medical schools may be affected if they receive small grants, often for student mental health, which trigger the Section 504 requirements.
The Controversy Over “Gender Dysphoria”
One of the most contentious aspects of the new regulations is a statement in the preamble that includes “gender dysphoria” as a potential disability. The HHS justifies the inclusion by referencing a federal court’s suggestion that gender dysphoria may qualify as a disability. of the Texas-led lawsuit.
The Lawsuit: Key Allegations
The Texas-led lawsuit challenges both the constitutionality of Section 504 and the legality of the HHS’s 2024 updates. The plaintiffs argue four main points:
- The HHS exceeds its statutory authority by including “gender dysphoria” as a disability under the ADA and Section 504.
- The Final Rule is “arbitrary and capricious.”
- Section 504 is unconstitutional.
- The Final Rule is unconstitutional.
The Status of the Lawsuit
In late 2024, just after the election, there were motions to temporarily pause the lawsuit. On February 19, 2025, the Department of Justice and the seventeen states filed a joint statement with the court, which stated:
- Defendants are still evaluating their position considering a recent Executive Order that instructs agencies not to “promote or otherwise inculcate gender ideology.”
- The lawsuit is on hold, with monthly status updates filed.
The plaintiffs clarified that they do not seek to declare Section 504 unconstitutional in its entirety or stop federal funding on the grounds of its constitutionality. However, the plaintiffs’ original complaint does challenge the scope of Section 504’s applicability. The plaintiffs argue that the non-discrimination provisions of Section 504 should only apply to programs specifically aimed at individuals with disabilities, such as Vocational Rehabilitation or IDEA programs in K-12 education. This interpretation would significantly limit Section 504’s reach, which contradicts the Civil Rights Restoration Act of 1987. That law defines “program” or “activity” as encompassing all operations of an entity receiving federal funding, including those under Section 504.
The Implications of Narrowing Section 504
A ruling that limits Section 504’s protections would set a concerning precedent. The implications are significant; it would basically limit all protections that Section 504 provides to people with disabilities. Something as basic as health care that does not fall under the ADA would no longer be required to accommodate people with disabilities. Additionally, the arguments used in this case could potentially impact other civil rights laws like Title VI (which prohibits discrimination based on race, color, and national origin) and Title IX (which prohibits sex-based discrimination). If ultimately a court finds that Section 504’s application is too broad, there is a risk of an argument that the nondiscrimination protections in Title VI (race color, national origin) and Title IX (sex) are similarly too broad.
Current Status and Future Considerations
As of now, the Americans with Disabilities Act (ADA) is not part of the legal challenge, and there have been no significant challenges to its provisions. All entities must continue to comply with both Section 504 and the ADA, including the upcoming digital accessibility requirements set to take effect in Spring .
Reach out to Blaze Bowers to learn more about our ADA/504 and Digital Accessibility services.