In 2024, the U.S. Department of Health and Human Services (HHS) finalized a rule that sought to expand the definition of "disability" under Section 504 of the Rehabilitation Act to include "gender dysphoria."
On Monday, Alabama Attorney General Steve Marshall joined attorneys general from other states to challenge the rule in court, noting that Congress expressly excluded payments for "gender identity disorders not resulting from physical impairments."
He argued the rule violated the Rehabilitation Act, required that resources be diverted away from individuals with physical disabilities, and jeopardized services in states that did not accept the administration's radical gender ideology.
"I applaud President Trump and his administration for working to remove woke ideology from HHS regulations," Marshall said in a statement. "The Biden administration's attempt to require states to pay for sex-change procedures or risk losing federal funding was unlawful and would have hurt the very individuals Congress sought to help when it enacted the Rehabilitation Act. I am glad our work challenging the prior administration's power grab has yielded such important fruit."
The comment, submitted as a letter to Robert F. Kennedy, Jr., argued that the 2024 Final Rule disregards a statutory boundary established by Congress.
"Congress made the ADA's definition broad enough to protect people with genuine physical impairments but explicitly excluded "transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders." 42 U.S.C. § 12211(b)(1). Section 504's definition is tethered to that same statutory choice, incorporating the ADA's concept of disability and copying its express exclusions. See 29 U.S.C. § 705(9), (20)," the comment says.
It further asserts that "gender dysphoria is diagnosed based on subjective, self-reported feelings and distress; it is not confirmed or denied by any physical test."
The comment says the new rule from Kennedy and Trump should be passed to protect states.
"By restoring the statutory exclusions Congress enacted, it [the Rule] offers clear guidance for states and grantees, prevents opportunistic litigation, and preserves the integrity of state programs while keeping Section 504 focused on disabilities that federal law actually recognizes," the statement adds.
The comment was filed by a multistate coalition led by the Texas Attorney General, who was joined by Attorney General Marshall and Attorneys General from Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming.
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