CHARLESTON – West Virginia is part of a 17-state lawsuit meant to block a plan the states say unlawfully attempts to change federal disability law to list gender dysphoria as a disability.
Some parents of children with disabilities say the lawsuit could greatly affect schooling and medical care, but West Virginia’s new attorney general says the case has been stayed and he expects the case to be dismissed very soon.
On September 26, Texas Attorney General Ken Paxton led the multistate lawsuit against the U.S. Department of Health and Human Services and Biden administration officials. In May, the Biden Administration adopted a new final rule the 17-state coalition says “directly undermines and contradicts established federal disability law by unilaterally redefining gender dysphoria as a disability under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.”
But the AGs say that when Congress passed these laws, it specifically stipulated that “gender identity disorders not resulting from physical impairments, or other sexual behavior disorders,” are not considered disabilities.
“The Biden Administration is once again abusing executive action to sidestep federal law and force unscientific, unfounded gender ideology onto the public,” Paxton said in a press release about the lawsuit. “Texas is suing because HHS has no authority to unilaterally rewrite statutory definitions and classify gender dysphoria as a disability.”
The lawsuit says the new rule is unconstitutional and asks the court to issue an injunction to stop enforcement. It also asks the court to get rid of Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination based on an individual's disability in programs that receive federal funding. That includes schools, hospitals, nursing homes and many other human service agencies nationwide.
Parents of children with disabilities are concerned about eliminating Section 504, saying the move could affect schooling and medical care.
Among the changes, federal officials added gender dysphoria to its definition of a disability under both rules. As a result, federal officials say that any 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" would violate federal protections.
In schools, Section 504 guarantees reasonable accommodations for students with disabilities, including those with medical conditions or mobility issues. It can include letting a child take insulin or be part of occupational therapy.
“Section 504 is an important law that protects people with disabilities,” Disability Rights Education and Defense Fund says on its website. “Section 504 says you can’t discriminate against disabled people if you get money from the United States government.
“To discriminate means to treat people badly because of who they are. Section 504 says you cannot treat people badly because of their disabilities.”
DREDF says Section 504 has rules that explain what disability discrimination is.
“The rules say that places like schools, hospitals, and doctors’ offices have to include people with disabilities,” the group’s site says. “The rules say what these places have to do to include people with disabilities. Anyone who gets money from the United States government to serve the public or do business has to follow the rules. …
“The United States government updates the Section 504 rules over time. The government just finished updating the rules in 2024. Many disability advocates wrote to the government about what to put in the rules. The updated rules are stronger and have more examples about what disability discrimination is.”
DREDF says Section 504 is important because it “covers all parts of society that get money from the United States government.”
Some of the ways it does that, according to DREDF, are:
Schools must include students with disabilities and help them learn.
* Doctors and schools must have sign language interpreters for people who are Deaf and Hard of Hearing who sign. Videos must have captions.
* Doctors must give clear information to disabled people. This includes people with intellectual and developmental disabilities.
* Websites for schools and hospitals must work for people who are blind and low vision.
* Doctors and hospitals cannot stop helping someone because they have a disability.
* Doctors and hospitals must have tools and machines that work for wheelchair users. This includes machines that check for cancer.
Disability rights supporters also worry about what President Donald Trump’s plans to overhaul or even eliminate the U.S. Department of Education, which plays a key role in ensuring Section 504 laws are implemented.
But West Virginia Attorney General J.B. McCuskey’s office said the concern and attention given to the lawsuit has given the office “a chance to review the intentions of the lawsuit more thoroughly.”
“In our review, the goal of the lawsuit was to return 504 back to the children who have disabilities contemplated when the 504 was created,” the office said in response to questions from The West Virginia Record. “The Biden administration added politically motivated language to the list of disabilities, threatening the constitutionality of 504. This lawsuit was aimed at removing that particular language in order to protect Section 504 as a whole and the children who rely on it.
“This lawsuit has been stayed and will likely be dismissed in the very near future because we anticipate that the Trump administration is going to do away with the disputed language – reassuring families that their plans and funding will remain to care for their children.”
The office said McCuskey has worked “his entire career to help West Virginia children and their families.”
“And he recognizes the value of Section 504,” the office told The Record. “We are closely monitoring the situation and will continue to do so.”
In the multistate lawsuit, the states and the federal government have a February 25 deadline to submit briefs.
In addition to Texas and West Virginia, other states named as plaintiffs in the lawsuit are Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota and Utah.
U.S. District Court for the Northern District of Texas case number 5:24-cv-00225