Sharon McMahon, a writer dubbed “America’s Government Teacher,” sounded an alarm earlier this month to her 1.3 million Instagram followers.
A lawsuit filed by 17 state attorneys general — including Utah’s — taking aim at rights for people with gender dysphoria, she and other influencers warned, could also endanger longstanding protections for people with disabilities. Utahns, afraid of what that meant for themselves and loved ones, flooded the inbox of Attorney General Derek Brown while others demanded answers from attorneys general across the country.
After days of furor online, Brown and the other states’ attorneys filed a clarification in court this week: They are not asking a judge to throw out a portion of federal law known as Section 504, which requires schools, hospitals and other places that get federal funding to protect the rights of people with disabilities.
“Plaintiffs clarify that they have never moved — and do not plan to move — the Court to declare Section 504 as ... unconstitutional on its face,” the filing in federal court in Texas said.
The lawsuit was filed by Texas and the other states against Xavier Becerra, then the secretary of Health and Human Services, after President Joe Biden’s administration expanded the administration of Section 504 to protect individuals with gender dysphoria. Utah joined it under then-Attorney General Sean Reyes in September and Brown took over the case when he took office last month.
Among the lawsuit’s listed demands, it asks that the court “Declare Section 504 ... unconstitutional.” But Brown and other attorneys general have repeatedly insisted the lawsuit would not gut the entire section of law.
Brown’s office wrote in a Tuesday post on social media platform X: “The lawsuit does not seek the repeal of Section 504 or stopping students from receiving services.”
In a statement online, Brown said the lawsuit’s request to declare Section 504 unconstitutional has to be understood in context.
“A ruling ‘declaring Section 504 unconstitutional’ would not revoke the existing benefits, programs, and accommodations this law provides,” the statement said. “Instead, in the context of the lawsuit, it would mean [the Department of Health and Human Services] could not threaten to revoke funding from states that do not comply with the Biden Administration’s regulations.”
In an interview, Brown noted, “I wasn’t the one who signed onto the lawsuit, right? I looked at it, and I said that there might be some reason for concern.”
Section 504, which preceded the 1990 Americans with Disabilities Act, bars any federal program or entity that receives federal funding from discriminating against — whether by excluding from participation or not extending access to the benefits they provide — people with disabilities. Its protections are most commonly seen in schools.
While being transgender is not considered a disability, some transgender people experience the medical condition gender dysphoria, according to the American Psychiatric Association, which causes severe mental and emotional distress when a person’s assigned sex at birth and their gender identity don’t align.
Accommodations like not forcing transgender people to use restrooms that don’t align with their gender identity, not preventing them from wearing gender-affirming clothing and using their preferred name and pronouns, can alleviate the impacts of the condition.
The 4th Circuit Court of Appeals ruled in 2022 that gender dysphoria is covered under the Americans with Disabilities Act. When that decision was appealed to the U.S. Supreme Court, justices declined to review the case.
Does Wednesday’s filing acknowledge that the lawsuit could, in fact, put at risk all of the protections in Section 504? “It depends on how a judge interprets it,” Brown said.
He added that he opted not to withdraw Utah from the case when he took office because “withdrawing would have taken us out of the conversation, out of the ability to affect change.”
“And so instead of doing that, we stayed there, and we spent time working with the other states to make sure that the kids were protected and that this is the result that we were able to get,” Brown said.
Utah’s Disability Law Center, which is tasked by the governor with advocating for the state’s residents with disabilities, sent a letter to Brown and Gov. Spencer Cox last month — the day before they were sworn in — urging them to reevaluate the state’s position in the lawsuit.
The organization’s policy director noted in an interview that if Brown’s priority is to preserve Section 504, it could be advantageous that Utah remain in the lawsuit.
But if the lawsuit achieves its primary demands, it still means children experiencing gender dysphoria would be left out of the law’s protections.
Utah transgender students reported being bullied at twice the rate of their peers, both on school property and online, according to the 2023 Student Health and Risk Prevention survey administered, in part, by the Utah Department of Health and Human Services. Approximately 1 in 2 transgender students said they had been bullied in the past 12 months, and 27.5% responded that they had skipped school at least once in the previous 30 days because they felt unsafe.
A page on the attorney general’s website explaining why Utah joined the lawsuit says, “These regulations could require public schools to allow boys to use girls’ bathrooms and locker rooms and allow for males to compete in girls’ and women’s sports.”
Brown responded to a question about whether “boys” and “males” in that sentence meant transgender girls by saying, “I don’t know,” then added, " I think one of the concerns was that we didn’t know exactly what [the new regulations] meant. I mean, what did this entail in terms of the accommodations?”
Utah has passed laws limiting transgender students’ participation in sports that align with their gender identity, and barring transgender individuals from using restrooms and locker rooms that align with their gender identity in government-owned buildings.
“I think our schools do a good job of working with the students, and this is a population that we need to be very aware of and mindful of,” Brown said, “and I think that the ultimate point of this lawsuit is not to take away necessarily, but to identify who it is that has the authority to make those determinations.”
The Biden-era expansion of Section 504 could have resulted in portions of those Utah laws being thrown out. If President Donald Trump’s administration reverses these added protections for transgender people, as some of his appointees have done with similar rules, Brown said his office — and other attorney generals — are weighing whether they would end the lawsuit.
