Here’s why the assault on Section 504 accommodations matters

Most Americans only encounter Section 504 of the Rehabilitation Act of 1973 if their child is one of the 8.5 million public school children with a 504 Plan.

Whether they are dyslexic, have cerebral palsy or a temporarily broken leg, 504 Plans help children participate in school and engage with classmates. But Section 504 is about more than accommodating students. It also prevents an employer from rejecting a qualified applicant in a wheelchair, requires sign language interpreters for hearing-impaired hospital patients, and says a landlord must accept a tenant with low vision.

However, if 17 states have their way, Section 504 and all the protections it provides will be declared unconstitutional.

“If 17 states have their way, Section 504 and all the protections it provides will be declared unconstitutional.”

“Before Section 504, responsibility for the consequences of disability rested only on the shoulders of the person with a disability rather than being understood as a societal responsibility,” according to Kitty Cone, a community organizer and disability rights activist on the 40th anniversary of Section 504. “If I thought about why I couldn’t attend a university that was inaccessible, I would have said it was because I couldn’t walk, my own personal problem.”

Section 504 was the first law to codify the civil rights of people with disabilities by declaring any program or activity receiving federal funds cannot discriminate against qualified individuals with physical or mental disabilities. This includes public schools, hospitals, transportation and social services, along with medical providers who accept Medicare and Medicaid.

Updating the Americans with Disabilities Act

In May 2024, the Office for Civil Rights at the Department of Health and Human Services published new guidelines for Section 504. The original guidelines were established by the now defunct Department of Health, Education and Welfare 50 years earlier and needed updating in light of technological advancements, major legislative actions like the Americans with Disabilities Act, passed in 1990, and the ADA Amendments Act of 2008, as well as rulings in federal court cases.

Alison Barkoff, director of Administration of Community Living at the HHS, oversaw the update and spoke about it in a webinar conducted by the Disability Rights Education and Defense Fund.

“We started the process by meeting with disability organizations and advocates and other stakeholders to hear about the issues that (they) thought needed to be covered in an updated regulation,” she explained. The result was the document “Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance,” also referred to as the “final rule.”

The final rule keeps the definition of disability intentionally broad to include as many people as possible whose disabilities impact major life activities and/or major bodily functions. Section 504 now includes individuals suffering from Long-COVID and those with gender dysphoria. According to the American Psychiatric Association, gender dysphoria is the distress someone feels when their personal sense of gender does not match their sex assigned at birth. Those with gender dysphoria face discrimination at school and in health care settings where finding knowledgeable providers is difficult.

The COVID pandemic exacerbated discrimination for everyone with a disability.

“The COVID pandemic exacerbated discrimination for everyone with a disability.”

“Disabled people were denied life-saving treatment like ventilators,” Barkoff said. “We saw people … forced into institutions, where there were the highest rates of death and COVID infections. And we saw the barriers that people faced in being able to access vaccines and other types of information because of inaccessible websites and vaccination sites.”

The updated final rule prohibits denying treatment to a disabled person if that same treatment would be offered to a person in a similar condition without a disability. It also requires that medical diagnostic equipment used by health professionals is accessible to those with disabilities. This would include exam tables, mammography equipment, dental chairs, X-ray machines and weight scales. Communication in medical settings, such as telehealth services, websites and kiosks, also must be accessible.

To avoid unnecessary institutionalization, the final rule clarifies that recipients of federal funds must provide services for disabled individuals in the most integrated settings possible. In line with the ADA, this applies to adults in nursing homes, care homes and day programs, and it ensures children with 504 Plans are integrated into regular classrooms.

The final rule also says children with disabilities cannot be taken from their parents, and parents with disabilities cannot have their children taken from them.

“This rule is going to save and lengthen lives, keep families together and keep people in their communities, and improve access to and quality of medical care disabled people receive,” said Maria Town, president and CEO of the American Association of People with Disabilities.

Ken Paxton sues

The final rule went into effect in July 2024, and by September, Texas Attorney General Ken Paxton had filed a lawsuit to have Section 504 declared unconstitutional. Joining him in Texas v. Becerra (Xavier Becerra, the defendant, was the head of HHS at the time of the filing) are the attorneys general of Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah and West Virginia.

The arguments put forth in Texas v. Becerra are so feeble and offered in such bad faith, that the states’ demand for the court to declare Section 504 unconstitutional and issue a permanent injunction against enforcing it is shocking in its boldness.

While the Office for Civil Rights at HHS updated Section 504 to better align with recent court decisions, the arguments in Texas depend on reversing those rulings, especially that of the Fourth Circuit Court in Williams v. Kincaid. While serving a six-month prison sentence, Kesha Williams, a transgender woman, was housed with male inmates and denied the medication and injections she had taken for 15 years to treat her gender dysphoria. The Fourth Circuit ruled her gender dysphoria should have been considered a disability under Section 504, because the 2013 change in the DSM from “gender identity disorder” to “gender dysphoria” was not just a matter of semantics, but resulted from new medical understanding about the disorder.

“The Texas filing deliberately misgenders Williams throughout and trivializes gender dysphoria.”

The Texas filing deliberately misgenders Williams throughout and trivializes gender dysphoria by describing Williams as “a man who believed he was female.” It falsely asserts Section 504 only pertains to physical disabilities, even though a 1974 amendment expanded the section to include “mental impairments.” Depression, anxiety, ADHD, learning disorders and autism are all currently covered under Section 504.

The suit’s assertion that Section 504 only pertains to physical disabilities that have been verified by a physical test also is untrue. The standard set forth by Section 504 is that individuals must have a disability (mental or physical) that “substantially limits one or more major life activities; or have a record of such an impairment; or be regarded as having such an impairment.”

Without a hint of irony, and little regard for the lives of disabled people, the lawsuit laments the hardship that would befall the Texas Department of Agriculture if a trans person with gender dysphoria did not conform to its “dress codes and grooming policies” and claims Section 504 curtails the “free speech” of West Virginia federal employees who want to misgender and deadname colleagues.

Texas v. Becerra also seeks to reverse the1999 Supreme Court ruling in Olmsted v. L.C. which said public entities must supply community services to people with disabilities when such services are appropriate, can be reasonably accommodated and when the person involved does not oppose the treatment. Willfully ignoring these limitations, the lawsuit complains the new final rule’s integration mandate “unfairly surprises states” with additional costs that Congress never intended for them to bear.

It is hard to believe states could be “surprised” by the decades-old Olmsted decision. As for the “retroactive” burden placed on state budgets, passage of the ADA and the original Section 504 law shows Congress found such spending appropriate when it comes to ensuring the health and liberty of disabled Americans.

What they want to take away

After what amounts to 37 pages of transphobia, the plaintiffs in the case are not asking the court to reverse the inclusion of gender dysphoria in the Section 504 preamble. Nor are they seeking to nullify only the updates to the final rule. Instead, the 17 states want the entirety of Section 504 declared unconstitutional and an injunction put in place that would excuse them from enforcing the civil rights of those with disabilities.

If the lawsuit is successful, it would mean the end of 504 Plans in public schools. Students no longer would have the assistive technology, extra time on tests and speech therapy they need to learn and thrive. Fewer job opportunities and accommodations in the workplace would lead to unemployment and greater income disparity. The country not only would lose the contributions of talented workers, but their tax revenue as well.

If health care providers can discriminate against disabled patients, those patients will suffer medical setbacks and lose access to preventive care. Disabled parents could lose their children, and nondisabled parents could have their children removed from their care by child welfare and institutionalized.

As news of Texas v. Becerra spread online, parents and disability advocates became alarmed. In response, the lawsuit’s plaintiffs issued a Joint Status Report in February that was notable both for what it said and what it left unsaid. They did not change the original filing, modify the claim or withdraw the lawsuit.

“The best protection for people with disabilities is for Congress to codify the right to integration into federal law.”

At the moment, the state attorneys general say they are evaluating the suit in light of President Donald Trump’s executive order that agencies shall not promote “gender ideology.” The states then double down on their aggressive attacks against providing care in the “most integrated setting.”

While protection for integration still exists in Olmsted, no ruling is ever truly final with the current Supreme Court. The best protection for people with disabilities is for Congress to codify the right to integration into federal law.

The Joint Status Report says the plaintiffs are not asking the court to declare Section 504 unconstitutional “on its face,” but making their claim as “an as-applied challenge to any purported application of Section 504 to funds that are not authorized by the Rehabilitation Act.” According to Barkoff and others, this means that if the suit succeeds, Section 504 would apply only to people with disabilities who are enrolled in the few services directly funded under the Rehabilitation Act, such as vocational rehabilitation programs. Section 504 no longer would have the power to prevent discrimination in health care, education, the workplace and housing.

Trump is also a threat

Trump’s personal disdain for those with disabilities is well documented. During his first administration, he mocked disabled reporter Sergei Kovaleski, refused to be photographed with veteran amputees and, after meeting with the families of people who were severely disabled, said to his nephew, Fred Trump, “Maybe those kinds of people should just die,” given “the shape they’re in, all the expenses.” The president later suggested Fred Trump, whose own son is also profoundly disabled should, “Let him die and move down to Florida.”

It is not a stretch to say Trump is “eugenics curious.” He once told Oprah people must have the “right genes” to become rich and accuses immigrants of having “bad genes.”

During the campaign, he used the phrases “mentally disabled” and “low IQ person” as insults against Kamala Harris.

“Many states have no desire to accommodate the civil rights of disabled people.”

Joseph A. Stramondo, who studies bioethics and disability at San Diego State University, pointed out that disabled people were the earliest victims of the Holocaust because of the Nazis’ interest in eugenics. While Stramondo doesn’t believe the U.S. would engage in outright murder, he says, “You can practice and enforce eugenic ideologies that result in lots of people suffering and even dying just by doing something like eliminating Medicaid.”

The elimination of Section 504 certainly would facilitate suffering and possibly death.

Even if Section 504 is ruled constitutional, there’s a chance the Trump administration will decline to enforce it. Among the executive orders Trump signed on Inauguration Day was one directing the federal government to end all policies that incorporate “diversity, equity, inclusion and accessibility.”

As a result, the Office of Civil Rights in the Department of Education placed on hold the 6,000 claims of students with disabilities who were not getting the help they needed. The OCR employees were forced to cancel all the meetings and mediations for disabled students and were prevented from contacting the students, schools or families involved in discrimination cases.

These were just the first steps in Trump’s dismantling of the Department of Education.

Another pending executive order threatens schools with the loss of federal funding if they continue what the administration considers DEIA programming. While Section 504 is paid for by states and localities, other disability legislation like the Individuals with Disabilities Education Act relies on federal grants. It’s possible the federal government could provide the states block grants free from accessibility regulations, as detailed in Project 2025. Unfortunately, as Texas v. Becerra makes clear, many states have no desire to accommodate the civil rights of disabled people.

Too depraved to believe

Like much that has transpired during the first six weeks of Trump’s second term, the coordinated attack against Section 504 seems too depraved to be believed. But before we give up hope, we would do well to remember these important protections for people with disabilities have been targeted before.

“In 1977, the status of Section 504 also was in doubt.”

In 1977, the status of Section 504 also was in doubt. Congress had passed the Rehabilitation Act years earlier but HEW had not published the regulations to make it enforceable. A HEW task force, pressured by the business community, began weakening the law’s original regulations and integration mandate, claiming they were too expensive and impossible to implement.

Kitty Cone and other disability advocates chose to act rather than wait for the government to issue changes to the law. The American Coalition of Citizens with Disabilities called for sit-ins at every HEW office in the country. Cone helped organize the sit-in at the San Francisco office.

“The composition of the sit-in represented the spectrum of the disability community with participation from people with a wide variety of disabilities, from different racial, social and economic backgrounds, and ages from adults to kids with disabilities and their parents,” she said.

During the sit-in, when authorities disconnected the phone lines, deaf protesters used sign language to communicate with reporters through the windows. Local activist groups including the Black Panther Party, the Butterfly Brigade of gay men and the members of Glide Memorial Church provided meals for the demonstrators. When a contingent of activists journeyed to Washington, D.C., to protest, those in wheelchairs rode around the capital in Hertz trucks with lifts on the back provided by the Machinists Union. The sit-in continued for 28 days, making it the longest in American history. And at the end of the protest, HEW Secretary Joseph Califano signed Section 504 with no changes to the original regulations.

Texas v. Becerra is on hold, for now. The next joint status report is due by April 21.

In the meantime, individuals who care about protecting Section 504, and live in one of the 17 states named in the lawsuit, should contact their attorneys general and ask them to drop the case. Those who live in states that value the civil rights of people with disabilities can lobby their attorneys general to file amicus briefs in support of Section 504.

Writing in Time magazine, disability advocate Rebekah Taussig said, “Disability is an experience we can move in and out of over the course of our lives, and disabled people are the only minority group anyone can become a part of at any moment. Section 504 is not a law for ‘those people.’”

Americans should come together again to protect Section 504 while we still can.

 

Kristen Thomason is a freelance writer with a background in media studies and production. She has worked with national and international religious organizations and for public television. Currently based in Scotland, she has organized worship arts at churches in Metro D.C. and Toronto. In addition to writing for Baptist News Global, Kristen blogs on matters of faith and social justice at viaexmachina.com.