CHARLESTON, WV (WOWK) – A lawsuit involving 17 states, including West Virginia, is sparking questions about preserving the rights of people who have developmental disabilities.
The 17 states are suing the U.S. government in the Texas v. Becerra lawsuit filed in September 2024 over language that the Biden Administration added to Section 504 of the Rehabilitation Act of 1973. Biden added language saying that “gender dysphoria” should be considered a “disability” and be protected under the act, according to the lawsuit.
Section 504 guarantees that people with developmental disabilities will have their rights protected in settings like schools, the workplace and more.
However, the states argue that “Section 504 is unconstitutional” due to the addition of “gender dysphoria.”
“Section 504 is sort of the grandfather of all disability rights issues,” Disability Rights of West Virginia Legal Director Mike Folio said.
The fear of many people with developmental disabilities and their families is that if a court rules Section 504 unconstitutional, people who benefit from the act would no longer get the help they need to survive, work, go to school and more without discrimination.
“With this lawsuit, what they would be telling these individuals, ‘you no longer have the protections under Section 504 of the Rehab. Act,” Folio said.
He continued, “The way the complaint is filed and currently positioned, it includes and requests the court to declare as unconstitutional Section 504, which means with the stroke of a pen, roughly 400,000 West Virginians would have their rights stripped away that they’ve been guaranteed for the last probably two or four decades.”
A handful of lawmakers said protecting the rights of people who have disabilities needs to be the top priority, regardless of people’s stance on “gender dysphoria” being added to the act.
“The concern is they’re going after a small section of the code but if they’re successful in throwing out that whole rule, it could really impact how we treat our special needs students,” Del. Mike Pushkin (D-Kanawha) said.
Other lawmakers support West Virginia being one of the 17 states that’s suing over the language.
“I stand with West Virginia’s joining,” Sen. Amy Grady (R-Mason) said. “With the students with disabilities in public schools, I don’t have any fear of us being able to continue to protect them because that’s our duty.”
Patrick Morrisey, the current West Virginia governor, was the Attorney General at the time that West Virginia entered the lawsuit. Current Attorney General JB McCuskey said the lawsuit could be dismissed this month, pending if the Trump administration will do away with the disputed language.
“For the last 36 hours, as he has for the last 12 years, Attorney General McCuskey has been focused on protecting the parents, students, and adults who rely on the 504 program in West Virginia,” the West Virginia Attorney General’s office said in a statement. “We want to assure parents that the 504 program is not going away, and no changes have been or will be made to the services provided under the program. People with physical or mental impairments will continue to have access to the programs they need to be successful.”
They continued by stating that Attorney General McCuskey has made “significant progress in resolving the matter” since he took office in January
Their office said, “The office is working diligently to address concerns and counter misinformation that is needlessly causing fear among parents across West Virginia.”
Though advocates like Folio said addressing the language is critical in a time where there is elimination of DEI on federal and state levels.
“It’s one thing to litigate over the gender dysphoria issues and the transgender issues. It’s another thing to tell your grandparents and your aunts and your uncles and your parents who are disabled that they have no rights,” Folio said.
Specifically, Folio said there must be a firm definition of what Gov. Patrick Morrisey and President Donald Trump define as DEI for legal purposes.
“That’s why you have to look at the language and that’s the real fear here is that we’re using political buzzwords that have a substantial and a significant legal consequences, but they’re not being defined,” Folio said.
He continued, “The problem that I’m seeing now is neither the president nor the governor has adequately defined what DEI is. It’s almost like rather than taking a surgical scalpel to the issue, they’re taking a sledgehammer. They need to define these issues to ensure that people with disabilities, and again, I’m talking about those who are locked up in nursing homes, assisted living facilities, they need to be protected. So I think we need to have the discussion, but we need to stay away from buzzwords and focus on an actual legal definition that’s going to be sure to protect people that we don’t want to be harmed.”
Folio made clear that Disability Rights of West Virginia does not advocate or take positions on gender dysphoria or transgender issues. They focus solely on people who have a physical or mental disability.
