States amend lawsuit against federal disability protections after outcry

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CNA Staff, Mar 1, 2025 / 06:00 am (CNA).

After a public outcry this month from disability advocacy groups and constituents, a group of state attorneys general has walked back plans to push a judge to declare unconstitutional a key federal rule that protects students with disabilities from discrimination.

The coalition of 17 state attorneys general, led by Texas, had in September asked a district court judge to declare unconstitutional Section 504 of the Rehabilitation Act of 1973, which has for decades prohibited discrimination against otherwise qualified individuals with disabilities in any program or activity receiving federal financial assistance. Among other things, the rule requires equal access and accommodations for people with Down syndrome in various settings where funds are coming from the federal government, such as education, employment, and health care.

At issue for the attorneys general is a new provision finalized by the Biden administration in May 2024 that stated — based on a 2021 appeals court ruling — that “gender dysphoria” may be treated as a disability under Section 504, based on “individualized determinations” of how the condition affects a person physically or mentally.

Texas Attorney General Ken Paxton, who is leading the lawsuit, contends that the rule requires all recipients of federal funding to “allow bathroom usage, pronoun usage, and dress codes to be based on ‘gender identity’ rather than biological sex.”

The lawsuit had originally requested that the courts declare the entirety of Section 504 unconstitutional and issue permanent injunctive relief against its enforcement.

However, after outcry from groups such as the National Down Syndrome Society, the attorneys general on Feb. 19 clarified that they did not intend to challenge the constitutionality of the entirety of Section 504 — only the “gender dysphoria” provision, in light of President Donald Trump’s recent executive action ordering the removal of all gender ideology guidance, communication, policies, and forms from governmental agencies. That portion of the lawsuit challenging the gender dysphoria provision will continue.

For his part, Paxton argued Feb. 18 that “no funding for existing disability programs or any person’s rights covered under existing plans under the Rehabilitation Act will be reduced by the lawsuit” but rather would prevent the federal government from pulling Texas funding for “disability programs, Medicaid, or public-school funding just because Texas doesn’t allow men in women’s restrooms.”

“Despite a misinformation campaign, Texans should know that from the very beginning, this lawsuit has not sought to take away the protections for anyone currently covered under the Rehabilitation Act but to protect them from federal attempts to strip their funding due to any refusal by Texas to abide by a ‘gender-identity’ mandate,” Paxton said.

*‘Encouraged to welcome’*

Sister Dale McDonald, PBVM, vice president of public policy at the National Catholic Educational Association (NCEA), told CNA that although Catholic schools in the U.S. are generally not direct recipients of federal financial assistance, they are expected to make reasonable accommodations for students with disabilities that don’t create undue financial strain or fundamentally alter the curriculum.

“504 does not provide any funds to any school or agency. Public and private schools must use their own resources to make accommodations. Public schools are required to use their state and federal funds to make need accommodations,” she explained.

McDonald also clarified that requirements under Section 504 are distinct from federal programs to assist students with disabilities such as the Elementary and Secondary Education Act (ESEA) and the Individuals with Disabilities Education Act (IDEA), both of which do not provide direct aid to schools; instead, program funds are distributed to the local public school district and private schools will negotiate with the district about what services they will provide for the private school students or teachers. Very few Catholic school students receive IDEA support, McDonald said, because the funding “is too little to serve very many.”

NCEA data shows that at least three-quarters of U.S. Catholic schools report having students with a diagnosed disability, McDonald continued.

“Given our mission and understanding of Gospel values to include Chrisitan hospitality, Catholic schools are encouraged to welcome students with disabilities who could access the curriculum with some accommodations,” she stated.

Leo Zanchettin, chairman of the National Catholic Partnership on Disability (NCPD), told CNA in an email that the NCPD is continuing to research the implications of the lawsuit and plans to “respond more fully at a later time.” The NCPD recently released an online series on welcoming and serving people with disabilities in Catholic schools.

The NCPD is, “of course, opposed to any action that would revoke protections for persons with disabilities as protected under Section 504,” Zanchettin noted.

“We do object, however, to including gender dysphoria as a protected disability under the provisions of Section 504. Such an inclusion would place on those who serve the young — especially the young with disabilities — unjust obligations to violate their deeply-held religious beliefs regarding the truth of the human person,” he said.