Lawsuit Threatens Protections Based on Gender Dysphoria

In May, the U.S. Federal Government codified protections for transgender people by qualifying gender dysphoria as a disability. Now, 17 states have joined a lawsuit which threatens to not only dismantle the protections for trans people, but all the protections made by the federal ruling.

The Department of Health and Human Services (DHHS) put forth this ruling this May. It revises section 504 of the Rehabilitation Act of 1973. The new ruling classifies gender dysphoria as a disability, meaning public schools, businesses, and other organizations which receive federal assistance are prohibited from discriminating on the basis of gender dysphoria. The ruling includes additional protections for disabled parents in child welfare cases and restricting hospitals from using disability as a factor when determining who gets care in emergencies.

The lawsuit was initially filed by Texas Attorney General Ken Paxton, and 17 states have joined the lawsuit. Many of the states that have joined the lawsuit have passed anti-trans legislation, such as Utah and Nebraska. In the lawsuit, Utah complains that adhering to the ruling would incur burdens and substantial costs. Nebraska worries that its state agencies would be at risk of lawsuits for not providing gender affirming care.

The lawsuit argues that the The Rehabilitation Act and American Disabilities Act (ADA) of 1990 did not include “transvestism or transsexualism” as disabilities. Both explicitly said gender identities disorders not resulting from physical impairments do not qualify as disabilities. Therefore, this expansion by the DHHS is unlawful.  However, the 4th Circuit Court of Appeals ruled in 2022 that gender dysphoria is distinct from gender identity disorder. This paved the way for the 2024 revisions by the DHHS.

The lawsuit only focuses on the inclusion of gender dysphoria as a disability. However, if the court rules in the plaintiff’s favor (the states), then it would strike down the entirety of the May ruling. Furthermore, the lawsuit was filed in the 5th Circuit Court, meaning the outcome of this lawsuit will likely conflict with the 4th Circuit decision. This lawsuit will likely reach the conservative Supreme Court.