Red States Challenge Biden’s Gender Dysphoria Disability Rule

A Texas-led state coalition is challenging a new US rule clarifying that gender dysphoria is protected under federal laws that prohibit discrimination against people who have disabilities.

Seventeen states sued US Secretary of Health and Services Xavier Becerra, saying that allowing transgender people to challenge programs that receive federal money “unlawfully changes the express terms” of the Americans with Disabilities Act and the Rehabilitation Act. The lawsuit was filed Thursday in the US District Court for the Northern District of Texas.

This appears to be the first lawsuit challenging the new rule, which states that gender dysphoria “may be considered a physical or mental impairment” entitled to the protection of laws that broadly prohibit any program or activity that receives federal money from denying a person benefits or subjecting them to discrimination solely by reason of their disability. Education, housing, welfare, and health-care programs are among those required to comply with the new measure.

Texas, Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah, and West Virginia will lose federal funding if gender identity disorders are deemed to be protected disabilities despite express statutory language excluding them from the definition, the states said.

The states asked the court to declare that the agency exceeded its statutory authority when it adopted the rule on May 9, 2024 and to set aside the provision as arbitrary and capricious.

HHS didn’t immediately respond to Bloomberg Law’s request for comment on Friday.

Even before HHS adopted the final rule, courts have held that gender dysphoria may be a disability protected by the ADA and Rehabilitation Act.

The Texas Attorney General’s Office is lead counsel for the states.

The case is Texas v. Becerra, N.D. Tex., No. 24-cv-225, filed 9/26/24.