West Virginia Attorney General affirms that Section 504 will not be overturned: ‘It is here to stay'
CHARLESTON, W.Va. (WBOY) — After receiving concerns from parents, caregivers and other interested parties, West Virginia Attorney General JB McCuskey affirmed on Thursday that a federal lawsuit West Virginia is part of does not plan to do away with the protections for those with disabilities.
In a press release, McCuskey stated that Section 504 of the Rehabilitation Act will 'be preserved.' A joint status report filed by all 17 states involved in the case clarifies that they 'have never moved—and do not plan to move—the Court to declare or enjoin Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, as unconstitutional on its face.'
The report added that the 17 states don't wish to 'enjoin the disbursement of funds from the Department on the basis that the statute is unconstitutional.'
McCuskey said that he and his team have been 'working around the clock' to protect Section 504 and the people who rely on it.
What is Section 504? West Virginia joins lawsuit sparking disability rights concerns
The case in question is one that West Virginia and 16 other states filed in September 2024 against the Department of Health and Human Services that primarily seeks to undo a rule imposed in May 2024 by the Biden Administration that adds 'gender dysphoria' to the list of protected disabilities under the Americans with Disabilities Act, as well as Section 504 of the Rehabilitation Act of 1973.
Both of these pieces of legislation established civil rights for Americans with physical and mental disabilities and protects them from various forms of discrimination under federal law.
The lawsuit, named Texas v. Becerra has the primary goal of undoing this rule and declaring it unlawful on the basis that it requires states and entities that receive financial aid from the U.S. Government to oblige people who suffer from gender dysphoria in the same they would anyone who has a physical or mental disability.
The lawsuit claims that if upheld, the new rule would require West Virginia to 'expend time, money, and resources to provide reasonable accommodations for those suffering from gender dysphoria.'
Despite McCuskey's comments and the focus of the lawsuit being to undo the May 2024 rule, an additional part of the original lawsuit calls on the U.S. Supreme Court to declare Section 504 unconstitutional. This request can be found in the lawsuit here on page 37.
Section 504 of the Rehabilitation Act of 1973 establishes federal protections against discrimination for people with disabilities, according to the Department of Health and Human Services. These protections apply to any employers and organizations that receive funding from the federal government, such as public schools and hospitals, and require them to provide equal access and accommodations to people with disabilities.
Under Section 504, the previously-mentioned employers and organizations are prohibited from denying employment opportunities for otherwise qualified individuals just because they have a disability.
In the initial lawsuit, the states seeking to overturn Section 504 claimed that it forces federal funding to be conditional for whoever receives it. The lawsuit claimed that this violates the Spending Clause of the U.S. Constitution that requires federal expenditures to be 'unambiguous' and to not 'be so coercive as to pass the point at which 'pressure turns into compulsion.''
These states also claimed that Section 504 universally requires federal funding recipients to comply with its policies, even if it doesn't receive any funding pursuant to the Rehabilitation Act or any other disability-related piece of federal legislation. The states claimed that Section 504 forces 'an impossible choice' on them between implementing the act and accepting any amount of federal funding.
Bill to remove abortion exemptions for rape, incest introduced for second time in West Virginia legislative session
The joint report filed by the states is the most recent move in this case, but other developments are expected over the next couple of months.
According to the Judge David L. Bazelon Center for Mental Health Law, a judge has set a schedule for the case, allowing time for the U.S. Government and the 17 states involved in the case to provide documents to the court that they believe will help their cases. This time period runs between December 2024 and April 2025.
During this time, outside states or groups that have a stake in the case may file amicus briefs to explain why the court should or should not rule in favor of the 17 states. After the court has all the papers, it will make a decision.
Copyright 2025 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
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