Suit over gender dysphoria could dismantle new disability rules

This article first appeared on Mother Jones. It has been republished with the publication’s permission.

When the US Department of Health and Human Services finalized a rule in May asserting that gender dysphoria can be considered a disability under federal anti-discrimination laws, it codified what the overwhelming majority of courts have found for nearly a decade. The new rule put states on notice: Discrimination against transgender people in employment, education, health care, child care, housing, and elsewhere may violate federal disability protections, and the Biden administration was prepared to fight it.

Now, in a lawsuit led by Texas Attorney General Ken Paxton, 17 states are asking a federal court to strike down the rule in its entirety, including numerous provisions that have nothing to do with trans people. This isn’t a random collection of states; 15 of them have passed restrictions on gender-affirming care, and all have embraced myriad anti-trans policies. 

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Among the states’ objections to the new federal rule: They would have to “expend time, money, and resources” to accommodate employees with gender dysphoria, including using the pronouns that align with their identities, eliminating sex-specific dress codes, and letting employees use gender-aligned bathrooms or locker rooms. Nebraska’s attorney general is concerned that his state’s restrictions on gender care put it at risk of disability rights complaints and federal investigations. South Dakota objects to the rule “essentially add[ing] a new category of potentially disabled individuals” whose gender care must be covered by Medicaid.

But gender dysphoria is just part of the 130-page federal rule. It also protects disabled parents’ rights in child welfare cases and prevents hospitals from using disability as a factor in determining who gets care in crisis situations, such as equipment shortages during a pandemic. It adds Long Covid to the list of conditions that may constitute a disability and strengthens protections against unnecessary institutionalization, requiring that care be offered in the least restrictive setting and, ideally, in a patient’s community. 

Striking down the entire rule would have wide-reaching implications for all disabled Americans and other marginalized groups who rely on federal agencies’ interpretations of decades-old laws to enforce their rights, says Mia Ives-Rublee, senior director of the Center for American Progress’ Disability Justice Initiative. “They’re utilizing LGBTQ issues as a wedge,” Ives-Rublee says. “The attack is really about the regulatory process of the federal government, and this will impact almost every interaction that a disabled person has with the services and supports that they receive.”

The new rule pertains to two federal statutes passed decades ago to protect people with disabilities on multiple fronts. The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by the federal government, federal contractors, and—in its Section 504—by any organizations or employers that receive federal funds. The Americans with Disabilities Act (ADA), signed into law in 1990, broadened disability protections into most aspects of public life, including education, access to businesses open to the public, and public transportation. Both statutes define a disability as “a physical or mental impairment” that “substantially limits” one or more major life activities. 

When the Rehabilitation Act and ADA were passed, gender dysphoria was not a recognized medical condition, and both statutes expressly excluded “transvestism, transsexualism,” and “gender identity disorders not resulting from physical impairments” from the definition of disability. But over the decades, medical experts and courts have come to understand that for many people who identify with a gender different from the one assigned to them at birth, there can be profound psychological distress and other major negative effects in their work and social lives. In 2013, gender dysphoria was added to the Diagnostic and Statistical Manual of Mental Disorders.

Since then, lawsuits by individuals—the primary way the ADA is enforced—have forged a body of legal decisions that recognize gender dysphoria as a protected health condition and its exclusion from disability protections as discriminatory, says Ben Klein, senior director of litigation and HIV law at GLBTQ Legal Advocates and Defenders. The exclusion of gender dysphoria “was based on obvious animus toward a disfavored group. That is a concept that judges who look at petitions have easily understood—the bias is so clear,” Klein says. 

The 4th Circuit Court of Appeals broke legal ground in 2022 when it became the first federal appeals court to rule on the issue of whether gender dysphoria could be considered a disability under federal disability protection statutes. The court determined that the basis of a gender dysphoria diagnosis—whether it causes a noticeably negative impact on daily life—distinguishes it from the ADA’s definition of gender identity disorder. (The US Supreme Court declined to hear the case in June 2023, letting the decision stand.) Lower federal courts have found, similar to the 4th Circuit, that gender dysphoria is distinct from gender identity disorder. Others have found that even if gender dysphoria is a gender identity disorder, it results from a physical impairment: a mismatch between a person’s physical body and gender identity that can be remedied through gender care. 

In finalizing its new rule—the first administrative update to Section 504 in half a century—the Department of Health and Human Services alluded to this body of case law, which it said has “shifted the legal landscape of disability discrimination protections.” But none of that matters much to the states that joined the Texas lawsuit, which was filed with little national media attention in late September. 

The lawsuit seizes upon the original exclusionary language in the ADA, claiming that what the medical community now considers gender dysphoria falls under the law’s concept of gender identity disorder. “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 announcing the suit. “Texas is suing because HHS has no authority to unilaterally rewrite statutory definitions and classify ‘gender dysphoria’ as a disability.”

Beyond the gender dysphoria issue, the lawsuit also makes broad claims about “new regulatory burdens” and “substantial costs” associated with the rule’s impacts to state Medicaid programs. Alaska, Montana, and Nebraska, for instance, argue that the rule’s “least restrictive setting” requirement will be difficult to implement because of health care worker shortages and their states’ unique geographies. 

Klein and Ives-Rublee emphasized that both the Rehabilitation Act and ADA were written vaguely with the intent that, over the years, experts working for federal agencies would reexamine and refine the regulations implementing the statutes, as scientific and public understanding of disability evolves. When the ADA was passed, trans identity was pathologized, Klein says. “One of the goals of the ADA is to address discrimination and myths and stereotypes, particularly about stigmatized health conditions,” he tells me. “Gender dysphoria is the quintessential stigmatized health condition.”

The new Texas case is just one of many avenues GOP officials are using to enforce their anti-trans beliefs. As I’ve reported, Republican attorneys general—many from the same states as in the Paxton lawsuit—are also threatening major medical associations with criminal investigations for promoting trans youths’ access to gender care.

Ives-Rublee warns that the Texas suit is also part of a multifaceted attack on the power of federal agencies to interpret civil rights laws, including protections for pregnant workers and access to reproductive health care. This broad conservative effort to rip the teeth out of the administrative state was emboldened by a series of Supreme Court decisions last term, including one that ended courts’ expected deference to federal agency interpretations of vague laws. 

Because the gender dysphoria lawsuit was filed in the federal district court in Lubbock, Texas, any appeal will go to the 5th Circuit Court of Appeals, home to some of the most radically conservative decisions in recent legal history. If the 5th Circuit sides with the states in this case, it would create a conflict with the 4th Circuit decision that could force the Supreme Court, with its far-right supermajority, to weigh in. “I am almost 100 percent sure this is their intention,” Ives-Rublee says.

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