BIRMINGHAM, Ala. — After an uproar among disability advocates over a gender lawsuit filed by multiple states, including Alabama, that could strip protections for students with disabilities, Alabama Attorney General Steve Marshall clarified Thursday that is not the lawsuit’s intent.
“The purpose of this suit is to protect those resources from the Biden Administration’s threats to cut off funding to schools that refuse to promote gender confusion in the classroom,” Marshall wrote in a statement to Alabama Daily News.
Alabama and 16 other states are challenging a Biden administration rule that added gender dysphoria as a covered disability under Section 504 of the Rehabilitation Act of 1973. Gender dysphoria is a condition the American Psychiatric Association defines as clinically significant distress caused by a mismatch between gender identity and biological sex.
But the lawsuit filed last year went further: It also asks the court to declare Section 504 – which prohibits discrimination against people with disabilities – unconstitutional.
That language has disability advocates alarmed.
Concerns over the lawsuit rose recently and spread quickly, prompting attorneys general in Georgia, South Carolina, Arkansas and Utah to try to calm parents’ fears. Each has said Section 504 is not the intended target, only the gender dysphoria provision.
In a Feb. 19 court filing, the attorneys general reiterated their position: “Plaintiffs clarify that they have never moved – and do not plan to move – the Court to declare or enjoin Section 504 of the Rehabilitation Act, as unconstitutional on its face.”
Marshall said eliminating disability protections was never the lawsuit’s goal.
“As the filing makes perfectly clear, this lawsuit has never been about restricting the opportunities that Section 504 provides for families across Alabama. Quite the opposite,” he said.
Marshall’s response doesn’t satisfy some Alabama parents, including Catey Hall. She said issues raised in the lawsuit reach beyond gender dysphoria as a disability.
“If their only goal was to remove gender dysphoria from the disability list, why did they also challenge the enforcement of the ‘most integrated setting’ and ‘at serious risk of institutionalization?’” she asked. “Those aren’t new Biden additions – they’ve been core disability rights protections for decades.”
The lawsuit claims that existing federal rules were expanded as to when a person should receive education or care in the most integrated setting, meaning the least restrictive place where they can live and learn.
It also challenges rules requiring services that help individuals avoid unnecessary institutionalization and isolation. Neither issue is directly tied to gender dysphoria in the lawsuit.
Hall, who has a child with a disability who receives accommodations through Section 504, posted an open letter to Marshall on Facebook on Tuesday.
“While I understand that you have framed this lawsuit as an effort to protect Section 504, the actual language in the filing is troubling,” she wrote. “The lawsuit explicitly asks for Section 504 to be deemed unconstitutional and seeks to exempt Alabama from having to comply with it. This would have devastating consequences for thousands of Alabama children and families who rely on 504 Plans for essential educational accommodations, my family included,” Hall continued.
Hall emphasized that Section 504 extends far beyond a single issue.
“Section 504 is not just about one issue—it is a vital civil rights protection that ensures children with disabilities have equal access to education,” she said. “Weakening or dismantling it would harm students with ADHD, dyslexia, autism, chronic illnesses and countless other conditions that impact their ability to learn.”
Special education attorney James Gallini, who has been following the case, said advocates’ pressure on state attorneys general led to the new court filing.
“The fact of the matter is (the lawsuit) did say ‘declare Section 504 unconstitutional,’” Gallini said.
Even as officials insist that Section 504 isn’t the target, the legal filing puts that in writing, he said.
Still, with the case currently paused, Gallini believes it may never reach court. He expects the Trump administration to address concerns over the gender dysphoria provision, eliminating the need for the case to proceed.
For now, Hall and other advocates are watching closely.
“The fact that they included broader challenges to long-standing disability protections makes it hard for me to believe that’s all they’re after,” Hall said.
About Section 504
Section 504 prohibits any entity that receives federal funding – including K-12 schools and higher education institutions – from discriminating against individuals with disabilities. The federal Office for Civil Rights defines a person with a disability as someone with “a physical or mental impairment which substantially limits one or more major life activities.”
Public K-12 schools use Section 504 plans to support student learning by removing disability related barriers.
Those supports could be anything from giving a student extra time to finish a test or assignment to providing textbooks for the student to keep at home. It could include requiring the school to notify a parent of a student who is allergic to peanuts to be notified when peanuts or peanut products are served at lunch; a student with ADHD might be allowed to use a fidget spinner.
Unlike Individualized Education Programs under the Individuals with Disabilities Education Act (IDEA), Section 504 plans typically do not include special education services.
According to federal data, just under 2%, or 13,700, of the state’s 733,100 students in K-12 schools, had Section 504 plans in the 2021-22 school year compared to 112,100, or 15% of students with IEPs.
Last year, the Congressional Research Service published a document outlining the rights of students with disabilities under Section 504, the Americans with Disabilities Act and the IDEA.