Update on the Texas v. Kennedy Lawsuit
This explainer gives updates about Texas v. Kennedy (previously Texas v. Becerra) .
Texas v. Kennedy is a lawsuit brought by 17 states in federal court in the Northern District of Texas. The lawsuit challenges 2024 regulations from the U.S. Department of Health and Human Services (HHS). The lawsuit claims that Section 504 of the Rehabilitation Act is unconstitutional. This explainer updates our February 21, 2025, explainer.
Background
Section 504 prohibits disability discrimination. It covers the federal government and those who get federal dollars. HHS updated its Section 504 regulations in May 2024. These regulations were last updated 50 years ago. The 2024 regulations make important updates. Covered entities may not discriminate in medical treatment or child welfare. They must provide accessible websites and medical equipment. As before, states must provide services in the community. They may not segregate or institutionalize disabled people who can live in the community with supports.
The preamble to the updated regulations discussed a case about a transgender person with gender dysphoria. HHS agreed at that time that transgender people with gender dysphoria may have a disability under Section 504.
The complaint filed by the 17 states (Texas, Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah, and West Virginia) challenges the updated regulations. The states complain about the discussion of gender dysphoria in the preamble. They complain about the regulation on integration. The complaint asks the court to strike down the updated Section 504 regulations. It asks the court to rule that Section 504 is unconstitutional. This would have a devastating impact on people with disabilities who routinely face discrimination.
Right now, the case is “stayed,” meaning it is on pause. See DREDF’s Protect Section 504 webpage for more information.
April 11 Report: States Abandon Claim that Section 504 is Unconstitutional
On April 11, 2025, the 17 states and HHS filed a Joint Status Report asking the court to continue the pause in the case. The states said they are no longer challenging the constitutionality of Section 504 of the Rehabilitation Act. This concession shows the power of the disability community’s advocacy. The report says:
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 [or]their Demand for Relief at d–e [which would have declared Section 504 unconstitutional and blocked HHS from enforcing Section 504]. And nothing in Plaintiffs’ Complaint seeks to . . . prevent the Federal Government from allocating spending or applying the provisions of the Rehabilitation Act to any recipients of such funds.
This means that the district court in Texas will not rule on whether Section 504 is constitutional. This question will not go to the Fifth Circuit Court of Appeals or the U.S. Supreme Court. The bad news is that the states have not dropped the case, and HHS has joined the states in their attack on the rights of transgender people.
April 10 Notice: HHS Rejects its Prior Position that Gender Dysphoria Can Be a Disability
On April 10, 2025, HHS published a notice in the Federal Register about the preamble to the Section 504 regulations. The notice says that the preamble’s statement about gender dysphoria “does not have the force or effect of law” and “cannot be enforced.”
HHS’s April 10 notice does not change existing caselaw holding that gender dysphoria may be a disability. We agree with that caselaw. We condemn discrimination against transgender people.
The HHS notice affects the claims in the Texas v. Kennedy lawsuit about gender dysphoria. The states and HHS are no longer in disagreement about the discussion in the preamble. This part of the lawsuit is likely “moot,” or no longer a dispute for the court to decide.
What Now?
The Texas v. Kennedy case remains a significant threat to the rights of people with disabilities. The 17 states continue to challenge the updated Section 504 regulations which include:
- the right to receive services in the community instead of institutions
- a ban on disability discrimination in medical treatment decisions including —
- life-saving healthcare
- organ transplants
- allocation of scarce resources like ventilators during a pandemic
- accessible medical equipment, websites, and kiosks
- reasonable accommodations and effective communication
The parties’ next filing is due on May 21, 2025. We urge those of you from any of the 17 states to continue advocating for your state’s Attorney General to withdraw from the case.
We are monitoring the case and will continue to provide you with updates. We will continue to defend the HHS Section 504 regulations and the important rights disabled people have fought so hard for.
We urge everyone to fight to defend Medicaid. The promise of Section 504 is empty without Medicaid. Medicaid funds the services and supports disabled people need to live in the community. For more information and tools check with your local disability organization and visit:
- Medicaid is Under Attack! Tell Your Elected Officials “Hands Off Our Medicaid!” | DREDF
- Medicaid Action Month | National Health Law Program
- 2025 Medicaid Toolkit | The Arc
We must all work together – your advocacy is important!
* Contributions also by Alison Barkoff, Hirsh Health Law and Policy Associate Professor, George Washington University
A PDF of this update can be accessed here.
Previous Update (February 2025)
This lawsuit was filed by 17 states seeking to invalidate Section 504 of the Rehabilitation Act and do away with the updated Section 504 regulations from the U.S. Department of Health and Human Services (HHS). Section 504 prohibits disability discrimination by the federal government and by recipients of federal funding in areas like health care, education, employment, housing, and transportation. It is our Nation’s foundational disability rights law and was signed by President Nixon. The HHS regulations prohibit recipients of federal funding from discriminating in areas like medical treatment and child welfare services and requires accessibility of medical equipment and websites. They prohibit segregation and unnecessary institutionalization of people with disabilities, consistent with the U.S. Supreme Court’s ruling in Olmstead v L.C. that disabled people have a right to receive services in their community instead of in institutions.
On February 19, the 17 plaintiff states and the President Trump Department of Justice filed a “Joint Status Report.” This filing does not change anything about the case. The states did not make any changes to the complaint. That means the claims remain unchanged, including the broad-based attack on Section 504 and the HHS Regulations. Although several Attorneys General told stakeholders that the lawsuit would be dropped or that their state would withdraw from it, all 17 states made clear in the new filing that they will continue to pursue their original claims that Section 504 itself is unconstitutional. No state has withdrawn from the lawsuit at this time.
The Attorneys General say the filing is to “clarify” what they mean when they say Section 504 is unconstitutional. On page two of the filing, they state that their claim “is an as-applied challenge to any purported application of Section 504 to funds that are not authorized by the Rehabilitation Act.” This legalese means that they are saying that Section 504 should only protect people against discrimination in the handful of programs funded under the Rehabilitation Act, like vocational rehabilitation services, and not the many other areas where Section 504 has always been applied, like health care, education, and housing. On the same page, they describe portions of the regulations related to community integration and Olmstead, which require states to provide services in the “most integrated setting,” as an example of an “alleged unconstitutional application[]” of Section 504. This means that the Attorneys General will continue to advocate that the “integration regulation” is unconstitutional. The integration regulation protects our right to participate in our community with supports instead of being segregated in institutions or separate classrooms.
This language is designed to confuse and distract from the clear meaning of the Attorneys General’s filing: they remain steadfast in their effort to have the highest court in our Nation invalidate a fifty-year-old statute that secures the most basic rights of people with disabilities while they learn, work, and seek health care. If successful, the Attorneys General’s action would invalidate students’ right to a 504 plan in school, patients’ right to accessible kiosks in their doctor’s offices, and the accessible transportation that people with disabilities need to work and take care of themselves.
They also continue their claims involving gender dysphoria as a disability. Thus, the Attorneys General’s sweeping attack on the rights of people with disabilities remains as dangerous as it was when filed.
The Attorneys General also make clear that they will aggressively attack the rights recognized and upheld by the Supreme Court in Olmstead – that segregation and unnecessary institutionalization of people with disabilities is discriminatory and illegal, and that people with disabilities have a right like everyone else to receive health care and other services in their homes and communities.
The parties asked for an indefinite “pause” of the briefing schedule in the case. While we had hoped that the Attorneys General would drop this case, a pause at least means that the lawsuit is on hold for now.
This new filing ignores the concerns of the disability community. Section 504 and the HHS regulations are still at risk. Advocates in the 17 states should continue to contact their AG to ask them to drop the case. We encourage you to coordinate with other local advocates for the most effective messaging. DREDF will be updating its webpage, including FAQs, to help advocates.
A PDF version of this update can be accessed here.
* Contributions also by Alison Barkoff, Hirsh Health Law and Policy Associate Professor, George Washington University
