The 17-State Challenge to Section 504

Texas v. Becerra, Docket No. 5:24-cv-00225 (U.S. District Court for the Northern District of Texas). Filed in September of 2024, this complaint by seventeen states sought to prevent implementation of new regulations by the Department of Health and Human Services (HHS). Specifically, the complaint was focused on language that gender dysphoria may be among the disabilities that could create eligibility under Section 504 and the ADA.  Plaintiffs allege that the provision violated the statutory exclusion of “gender identity disorders not resulting from physical impairments.”  For Section 504 purposes, amidst the various requests for relief sought was this declaratory judgment: “Declare Section 504, 29 U.S.C. §794 unconstitutional.”

 

With the change in administration in January of 2025, Secretary Robert F. Kennedy, Jr. has replaced Secretary Becerra as a Defendant in his official capacity as head of the HHS. Likewise changed are some of the priorities and positions of HHS. Consequently, the parties requested that the court stay all proceedings and revisit the litigation with a joint status report. The rationale for the stay was as follows:

 

“Defendants respectfully notify the Court that on January 20, 2025, the President of the United States issued an Executive Order titled ‘Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,’ which reflects the position of the United States and provides that agencies shall not ‘promote or otherwise inculcate gender ideology.’ In light of that Executive Order, Defendants [HHS et. al.] require additional time to evaluate their position in the case and determine how best to proceed.”

 

In short, the new administration does not support the new regulation at issue, and HHS needs to address the change. The stay was granted on January 25, 2025.

 

That the litigation was on hold did not prevent public reaction by individuals with disabilities and their families concerned about the possible loss of Section 504 plans and nondiscrimination protection for students under Section 504. While the impact of that pressure is impossible to gauge, an April change in the Plaintiff states’ position is interesting.

 

A Joint Status Report was filed on April 11, 2025. The parties agreed to continue the stay of proceedings to allow HHS to evaluate its position. The Report also included a clarification on the relief sought. Despite the clear language of the Complaint arguing that Section 504 is unconstitutional, the Plaintiff states now claim no desire for such a declaration.  "Plaintiffs further clarify that they have no intention to seek any relief from this Court on Count 3 (Section 504 is Unconstitutional) of their Complaint, including that in their Demand for Relief at d-e, ECF No. 1.”

 

The same day the Status Report was filed, HHS provided the following clarification to its new regulations in the Federal Register. “Language in the preamble concerning gender dysphoria, which language is not included in the regulatory text, does not have the force or effect of law. Therefore, it cannot be enforced.” 90 Federal Register 15412, April 11, 2025.

 

The parties were ordered to provide a status update by July 21, 2025.