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A lawsuit over whether gender dysphoria should be considered a disability threatens to upend more than 50 years of disability rights law that allows students to get important accommodations at school.
The case has its origins in updates to federal rules made during the Biden administration.
Federal officials added language that gender dysmorphia may be a disability that deserves protection in federally funded health care settings, workplaces, and schools through a law known as Section 504.
Seventeen state attorneys general, including Indiana Attorney General Todd Rokita, sued in Texas v. Becerra. The attorneys general didn’t just argue that gender dysphoria shouldn’t be classified as a disability, they argued that all of Section 504 should be declared unconstitutional.
Though they walked back that argument in the most recent court filings, disability rights advocates remain deeply concerned the case could undo protections for students with disabilities. For example, the law allows students with ADHD to have extra time on tests and students with hearing impairments be able to record lessons so they can replay them.
The case comes as many advocates are worried that efforts to overhaul or dismantle the U.S. Department of Education could hurt students with disabilities.
Still, advocates say this most recent filing indicates that states are not backing away from the broader legal challenge to 504.
“This means that the Attorneys General will continue to advocate that the ‘integration regulation’ is unconstitutional. The integration regulation protects our right to participate in our community with supports instead of being segregated in institutions or separate classrooms, " said a statement from the Disability Rights Education and Defense Fund.
The case is currently on hold, with the next monthly status update due by April 21.
Section 504 protects ‘thousands’ of Indiana students
Section 504 of the Rehabilitation Act was landmark legislation in 1973 that codified the rights of individuals with disabilities to participate in federally funded programs.
In the school setting, it can secure accommodations for students whose disabilities don’t qualify under the Individuals with Disabilities Education Act, which covers students with disabilities in 13 specific categories.
Section 504 may allow a diabetic student to check their blood sugar before taking a test, and to retake it if it’s low, said Joe Kwisz, president of the Indiana Council of Administrators of Special Education. It can provide protections for students with anxiety, depression, or temporary disabilities, such as requiring schools to offer an alternative to screen time for a student athlete recovering from a concussion.
“Not everything we do under 504 would be easily allowable without some kind of law enabling schools to make accommodations that students need,” he said.
The 2024 changes affect both the regulations of the law and the preamble, which can be more easily changed by a new presidential administration, according to Claudia Center, DREDF legal director.
It’s the preamble that says gender dysphoria “may constitute a disability under section 504 and 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.”
Whether an individual’s case of gender dysphoria could meet the criteria for a 504 depends largely on whether the diagnosis “substantially limits any major life activity” — a key component of the law for any disability to qualify under Section 504, said Janet Decker, an associate professor of education policy and law at Indiana University.
After an executive order on gender from President Donald Trump, advocates expect his administration to change the preamble and remove the reference to gender dysphoria.
But the 2024 changes to the law also include clarifications about its application in health care settings, including specifying that certain websites and apps must be accessible, and that patients can’t be offered care only in segregated or institutional settings.
Changing these rules would require the administration to go through another rule-making process, Center said.
Advocates hope that the attorneys general will agree to drop the case following the expected changes to the preamble.
“Once the hot topic is resolved, if section 504 rights are taken away from our students, that would be a tremendous disservice to our state and also the country,” Kwisz said. “If 504 was abolished, you’d have thousands of students in Indiana who would lose their services and protections as guaranteed by the law.”
What could happen in Texas v. Becerra
Some state AGs have indicated that they expect the lawsuit to wind down following Trump’s executive order. Rokita did not respond as to whether he would consider dropping the suit in expectation of the Trump administration making the change.
A Rokita spokesperson said in a statement: “As a father of a special needs child, Attorney General Rokita understands and is in full support of the ADA and Section 504. That is exactly why Indiana joined a multi-state lawsuit to stop the Biden Administration’s unlawful attempts to add “gender identity disorders” to the list of disabilities. And now thanks to President Trump, Section 504 will be restored to its original intent.”
It’s unlikely that the case will result in Section 504 being declared unconstitutional, said Decker, the IU law professor.
Decker pointed to parallels between this case and the legal fight over the Biden administration’s Title IX updates. Legal challenges over expanded protections for transgender students resulted in all the new regulations being tossed.
It’s an important case to watch in the context of the national push to downsize the federal government and dissolve the Department of Education, because of the potential to weaken the enforcement of protections guaranteed to people with disabilities.
“There are all kinds of inequities at the school level that are remedied through oversight at the federal level,” Decker said.
Aleksandra Appleton covers Indiana education policy and writes about K-12 schools across the state. Contact her at aappleton@chalkbeat.org.
