Another Battle In The War Against The Disability Community
Seventeen states have filed a lawsuit to find Section 504 of the Rehabilitation Act unconstitutional.
Seventeen states have now joined a lawsuit, Texas v. Becerra, to dismantle Section 504 of the Rehabilitation Act. (1973) The suit is in response to a Biden rule to include gender dysmorphia as a condition protected under Section 504. The crux of this argument is that the American with Disability Act (ADA, 1990) specifically prohibits it, and similar conditions as disability, instead, classifying them as solely mental disorders, and not subject to the law. The suit alleges that the rule itself is illegal because it includes “gender dysphoria as a potentially-protected condition when federal law explicitly excludes it, is contrary to law and exceeds Defendants’ statutory authority.”
While the first pages of the suit reads like yet another assault on trans rights, the actual scope of this lawsuit is more far reaching, and far more sinister. They don’t just want to bar accommodations for one marginalized group. They want to eradicate them for everyone.
Section 504 was created in 1973 as part of the Rehabilitation Act. It lays out a very simple premise:
“No otherwise qualified individual with a disability in the United States, as defined in section 705 (20) of this title, shall, solely by reason of his or her disability, be excluded from the 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 backlash to the lawsuit has been swift among groups ranging from educators, disability rights organizations, and those that work within the elderly populations. In the past few days, a handful of the State Attorney Generals involved, including Iowa, Kansas and South Carolina, have come out publicly to say that they are not looking to revoke Section 504 entirely. They only mean to overturn a Biden-era rule that disability also includes gender dysmorphia.
However, that isn’t exactly accurate if you read the lawsuit.
Count Three of the filing, calls for a finding that Section 504 on its own is unconstitutional. The plaintiffs allege that “504 of the Rehabilitation Act violates the principles of clear notice, relatedness, and anti-coercion”.
What does this mean in simple terms? First, is clear notice. The plaintiffs allege that when a condition is added as a disability under Section 504, the states are not given enough notice to decide if they want to continue with the contracted funding. If they have taken it, they now must accept the new conditions, which puts an unfair burden onto the states, and was not part of the original contract when the funds were accepted. In other words, by adding conditions after funding is accepted, the federal government has violated the contract without proper notice.
Following ‘clear notice’ is ‘relatedness’. This goes directly to the heart of the wording in Section 504. The argument is that federal funding for agencies that are not directly affected should not be included. Meaning that if a state violates the 504 requirement in one federally funded program, they should not lose federal funds for every program. For example, if there is a 504 violation in a state’s education services, funding for housing, commerce, infrastructure or hospitals should not be affected.
Finally, we come to “coercion”. The argument here is that by threatening to withhold ALL federal funding, states no longer have autonomy to run programs that they are supposed to be in charge of. It hinges on the ruling that the “Constitution simply does not give Congress the ability to require the States to regulate,” New York v. United States, 505 U.S. 144, 178 (1992).”
At its heart this case is a state’s rights case. It questions whether states do have the autonomy to spend funding in ways they believe best serve the community, without the threat of losing every cent of federal funding if they do not comply with the federal government’s stance in one area or on one rule.
In reading the lawsuit, it appears they have plenty of precedent to back up the claims that Biden’s rule did, in fact, go further than was legally allowable. Particularly with the express wording in the ADA. In order for that rule to stand, Congress would have to address it with new legislation to strike that particular section from the existing law.
But, what about Section 504 as a whole?
If the court sides with the plaintiffs this would open up a can of worms for the current administration, which has used threats of withholding funds over a variety of issues. The court would be issuing a mandate that simply says, funding for one program is not dependent on compliance within other programs. This would remove a lot of leverage President Trump currently employs in order to get states to submit to his will. If the court sides with the defendants, it gives the administration leverage to withhold any and all funding simply because they are not getting their own way on a policy. This would give Trump even more power than he currently has been trying to wield.
If Section 504 was found to be unconstitutional, the effects would be widespread.
Everything from sign language interpreters in state offices and hospitals, to accommodations for children with disabilities in schools would be affected. Infrastructure and buildings would no longer be required to be made accessible. Discrimination based on disability in the workplace would be legal as well. Perhaps, most importantly, schools would no longer be required to provide a free and appropriate education to students with disabilities.
I have written on previous occasions that the goal is to return back to the days of classroom segregation, “special schools”, and even institutionalization for students who need accommodations. The goal has always been to erase disability from the public eye. By specifically targeting Section 504, not only do we get closer to that goal, but we arrive there at an alarming rate.
While we certainly would be well within the realm of common decency to decry the attempt at rolling back what little protection there is for those who are trans, we also have to recognize that this isn’t aimed specifically at them. No matter what they are trying to tell us. The trans community is a tool and scapegoat for the ultimate goal of a society based on eugenics and shunning of those who are different.
Yes. No matter what they say, they are trying to eradicate a fundamental protection for the disabled population that has sustained for over half a century. Yes. They are trying to remove disabled students from public education. They are trying to remove disabled workers from the workforce. Yes. They are trying to bring back schools that “best suit a student’s needs”, which is just a fancy way of saying that they are bringing back the segregated schools and institutions so many have fought for so long to eradicate.
Will they succeed? It’s hard to say. If you read through the suit, they do cite a lot of precedent that may ultimately win them the case. It is also possible that a judge would strike down the Biden rule, while siding against the states on the other counts raised.
One thing is certain however, we can expect the conservative states to continue the agenda of ensuring those with disability, the elderly, and anyone they see as different are kept on the fringes of society. This is the exact opposite of what Section 504 was written for.
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As always, thank you for reading! — Courtney
Thank you for digging into this - and for explaining clearly the impacts.
As someone who is disabled due to a serious chronic illness, the risk of this lawsuit is just one more reason for me to very afraid for my ability to survive.
Over the last five years, I’ve been studying our nations history from the perspective of the people we call The Founders. I’ve had a general idea of the ideals & vision of society held by the Founders, but I was shocked just how radical their ideas really were, then, as well now. Consider the idea of Freedom.
Jefferson (as well as Madison, Franklin and Common Law) described Freedom broadly, and comprised of three types - freedom of Mind, of Body and of Property (which didn’t refer to ownership of land so much as the product of a person’s effort, I think). This Freedom, as described in the Declaration of Independence, was universal and absolute; the natural and unalienable human right. And it was of no concern or business of Government except when it led to harm to a non-consenting other. It’s is from this understanding of Freedom that Religious Freedom (& Freedom from Religion) is based on.
My question is how did we begin with this very limited view of government’s regulation of Freedom end up with 1) such broad definitions of harm as to include harm to general moral beliefs of a community; & 2) a clearly defined human freedom being treated as if it only counts if SCOTUS decides that a specific group qualifies for that Freedom?
From my reading of these early views of Freedom and what kind of harm would lead to the need for government regulations, it would seem that any outcomes that essentially limit the Freedom of an another can be harm. When Jefferson is writing about Religious Freedom (ie The State of Virginia, 18. ), he uses as examples of harm “breaking one’s leg”. These are pretty straight forward definitions of harm.
But I think it is fair to consider any action on the part of another/others that somehow interferes with my ability to live as I would normally do so - that is, affecting my ability to function, to interact, work, recreate, socialize without interference caused by someone else’s behavior.
What it wasn’t was “hurt feelings” or “guilt” - those amorphous outcomes Florida Gov DeSantis has based his new regulations of Education, work and language. For instance, we don’t teach Black History in Public Schools that might make a student feel guilty. In addition to reflecting a typical misrepresentation of anti-racist, sexist, and homophobic efforts as having tj di with “hurt feelings” (as opposed to very real, and measurable negative outcomes for political minorities due to hate speech), it makes the notion of Freedom & harm so subjective it’s useless.
So when I read that this lawsuit against Disability Rights could lead to the tossing all rights that protect the disabled, I have to ask, why wouldn’t disabled people have the same rights to Freedom and Liberty as anyone else. If a business makes it impossible for me to enter their premises, that cause of harm that arbitrary harms the disabled people. If my child has a disability, why wills she have the same rights as all students to have safe access to school and classroom. Denying her access is a form of harm that interferes with her education and most likely leads to anxiety and stress, which could make it even harder for her to learn.
These are pretty concrete and provable types of harm. Anytime any group is denied the same Freedom as anyone else, or be subjected to harm in ways unique to their group, government regulation of the harmful behavior is warranted. But the disabled student shouldn’t be able to claim that even though she has equal freedom & no disproportionate negative outcome, the government should get involved because it makes her feel bad to be around kids without disabilities. That is not harm: her feelings are her own.
Now if many of the abled students at school harassed the disabled girl daily, and spread terrible rumors about her, called her names, and got in trouble with the School, to the point that she is having trouble learning and is afraid to go to school, those children’s behavior is causing harm. It’s still a very clear differentiation between harm and something and individual feels or believes on their own.
I have the same problem with the efforts of some to convince the government to regulate birth control. The very idea of this being possible, to impose the moral ideas of a few in the many, seems completely inconsistent with the intended meanings of Freedom. How did we get to a place where SCOTUS justices are actually considering the possibility of making such rulings?
In sum, I’ve seen no evidence that the original intent of the founders was to allow justices to regulate our Freedom of Body when our use of birth control does not harm to anyone else. I know that some would argue that it’s in the best interests of the government to insure that enough children are born each year, but then who defines “enough?” These are highly subjective and often religiously driven efforts to regulate women’s sexual activity - how can they even be a possibility, given the premise that our Freedoms are inalienable, as long as no harm comes to others.
Would there be a problem with implementing this very basic idea of Freedom into our law? It would really be in everyone’s best Interest, at least everyone who wants their own Freedom. As the saying goes, no ones is free of even one person is not free. Why? Because to arbitrarily deny some people their freedom is in fact the arbitrary abuse of power. And once we have shown our acquiescence to the denial of others their natural human rights, there is nothing to stop the same abuse of power to target us. It’s necessary for our rights to be absolute and universal; it’s the only way to guarantee that those rights of Freedom exist for everyone always.