Section 504 Under Attack: Gender Dysphoria and the Fight for Disability Rights

Introduction to the Ongoing Legal Attack on Section 504 

On his first day in office, Donald Trump signed an executive order targeting DEI programs, but with a twist. The order explicitly mentioned accessibility. A week later, Medicaid portals went dark for over 24 hours. After that, law makers were unable to enter the Department of Education, which is responsible for guaranteeing students with disabilities have equitable access to education. The Department of Labor began reporting issues, which is responsible for supporting Vocational Rehabilitation agencies. Amid all this, a September 2024 “State of Texas v. Becerra” lawsuit against section 504 began making headlines. For many, this was the first time hearing about the case, which claims section 504 is unconstitutional.  

To the average person, Section 504 sounds like something bureaucratic, technical, and obscure. Yet it is the foundation upon which the Americans with Disabilities Act (ADA) is built. Eliminating Section 504, or refusing to enforce it, threatens to turn accessibility into a two-tiered system supporting physical access but neglecting those with more complex, non-physical needs in federally funded programs. 

What is Section 504? 

Section 504 mandates accessibility for federally funded programs. It is a part of a larger bill called the Rehabilitation Act passed in 1973. It is a remarkably short section which states, in part, “No otherwise qualified individual with a disability in the United States… shall, solely by reason of their disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate regulations to implement this section.”

To better understand the law, we need to look at the differences between the ADA and Section 504. For businesses with 15 or more employees, you can download the Ultimate ADA Compliance Employer Checklist here. 

The ADA is often understood as focusing on physical accessibility and ensuring equal access for people with disabilities, but its scope goes beyond just the physical environment. Title III of the ADA requires that public accommodations (like restaurants, hotels, theaters, and transportation services) be physically accessible to individuals with disabilities. This includes things like wheelchair ramps, accessible bathrooms, and other physical infrastructure improvements. Title I of the ADA requires employers (with 15 or more employees) to provide reasonable accommodations for qualified individuals with disabilities to ensure they can perform essential job functions. This could be anything from modified work schedules to adaptive technology or physical modifications to the workspace. Title II requires state and local government programs, services, and activities to be accessible to individuals with disabilities. This might include physical changes (e.g., accessible voting booths, curb cuts, or public buildings) as well as accommodations in services (e.g., interpreters for public meetings or providing materials in accessible formats). 

Section 504, on the other hand, is often considered to be more comprehensive and nuanced in its approach, particularly when it comes to the specific needs of individuals with disabilities that go beyond just physical access. It was designed to ensure that individuals with disabilities are not discriminated against in programs or activities that receive federal funding, and it focuses on ensuring access to services, not just physical structures. This includes more complex, individualized needs.  

Section 504 covers more complex accommodations, like adjustments in the delivery of services, program participation, and modifications to curricula or testing methods. For instance, if a person with a disability needs a modified test or extended time for a federal exam, Section 504 would require that this accommodation be provided. This kind of programmatic accommodation goes beyond just ensuring access to a building or physical space.

Texas v. Becerra: The Legal Challenge to Section 504 is gender dysphoria 

For nearly forty years, attorneys did not argue about Section 504’s constitutionality, but quibbled over how agencies should implement it. In 2024, the Biden administration finalized a new rule, which included gender dysphoria under Section 504. When the window closed for public comments before the rule was finalized, the Biden administration defended its decision, stating that gender dysphoria is a physical condition. 

“The court noted that the term ‘gender dysphoria’ was not used in section 504 or the ADA nor in the then current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM). In 2013, the phrase was changed in the DSM from ‘gender identity disorder’ to ‘gender dysphoria,’ a revision that the court said was not just semantic but reflected a shift in medical understanding. The court reasoned that gender dysphoria is not included in the scope of the exclusion for ‘gender identity disorders,” but that even if gender dysphoria were such a disorder, plaintiff's complaint ‘amply supports [the] inference’ that her gender dysphoria ‘result[s] from a physical impairment.’” ii The Biden administration argued that there is legal precedent for the new rule and refused to change it. Then, Texas and other states filed their lawsuit (Texas v. Becerra).   

The briefing spends 37 pages targeting the new rule, which is only related to gender dysphoria, not the constitutionality of the law. “Gender dysphoria is a psychological condition that results when a person feels “discomfort” his or her biological, immutable sex, it falls within category of “transvestism, transsexualism... [and] gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” which is expressly excluded from the definition of “disability “under Section 504 and the ADA.” iii But in the last two pages, they offer a solution. Declare the act unconstitutional.  

First, they argue that the federal government imposed new conditions (gender dysphoria protections) without giving states the choice to accept or reject them, making it an unconstitutional use of federal funds. 

Second, the briefing states that section 504 “imposes its requirements on federal funds disbursed pursuant to legislation totally unrelated to disability.” The states are arguing that the addition of gender dysphoria is unrelated to disability. Then, they arrive at the heart of the constitutional argument. It violates states’ rights as expressed in the tenth amendment by imposing coercive spending which either surprises states or retroactively imposes conditions. 

The claim is that if section 504 can be modified to include gender dysphoria, then the entire section can impose retroactive burdens on states. Therefore, the entire law violates the spending clause of the constitution.  

Weakening Section 504: Enforcement and Budgetary Attacks 

But Republicans may not need to declare section 504 unconstitutional if they can prevent it from being enforced. 

At his inauguration, President Trump signed an executive order demanding the elimination of diversity, equity, inclusion, and accessibility initiatives within every federal agency. While the executive order primarily targets DEI initiatives, its inclusion of “accessibility” raises concerns that it could lead to the rollback of disability-related programs within federal agencies. This could mean reduced funding for accommodations, limited enforcement of disability discrimination complaints, and a broader chilling effect on accessibility initiatives. At the time of writing, we are still watching the consequences of his executive order unfold, and it is unclear how far he and Elon Musk can go. 

States and Advocacy Organizations Are Litigating Back Left and Right 

Though we cannot yet determine the full implications of their efforts, we know a few things. First, legislators were prevented from entering the Department of Education by an individual refusing to identify himself. 

In a recent ProPublica article, anonymous employees at the Office of Civil Rights, located within the Department of Education, claim that they have been forced to cancel all meetings involving students with disabilities, which totals approximately 50% of currently active cases. The OCR has also opened 20 investigations so far this year, as opposed to the 110 investigations launched during President Biden’s first three weeks in office and is far less than the “250 new cases opened in the same time period last year.” iv One of the newly opened investigations involves “whether one all-gender restroom in a Denver high school discriminates against girls,” even though there are other girls’ restrooms in the school, and even though the students advocated for the all-gender restroom, including female students. 

This is a dramatic shift from cases such as one in rural Pennsylvania last fall, where the Office of Civil Rights intervened to stop a group of white students calling themselves the “Kool Kids Klub.” Republican legislators are also proposing to slash the OCR’s budget by 25%. v 

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