How One Lawsuit Targeting Trans Rights Could Undermine Disability Protections for Everyone

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is you mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. The people have the power to make this life free and beautiful. To make this live a wonderful adventure.

0:00:38 Clip: I still believe with all my heart, America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong. Country is always worth it.

0:00:58 Thomas: Hello and welcome to opening arguments. This is episode 1141. I'm Thomas Smith. That over there is real life attorney Matt Cameron. How are you doing?

0:01:05 Matt: Right. I am excited to talk once again to Jenessa Seymour to learn more about an entire field of law I know nothing about. She's really good for that.

0:01:12 Thomas: Bird law. No. No. What kind of law?

0:01:14 Matt: I mean, we're talking about Section 504, which is disability rights, which has always been important, but is under attack, of course, along with everything else the Trump administration. Is an expert in this, and I'm very excited to talk to her again.

0:01:27 Thomas: Excited to have her back uh she was on recently as folks will remember um the topics are always uh the guests are not that's that's our tagline I'm working on it something but it's always great to talk to Jenessa I'm excited to get on over to it so we'll take our usual small break here go to patreon.com/law if you'd like to avoid the ads and get the goodies and all that and after this we'll get on with Jenessa Jenessa how's it going long time no see yeah

0:01:56 Jenessa: It's been forever. The leaves have changed. The sun came out.

0:01:59 Thomas: Gotcha

0:02:02 Matt: I've been seeing these headlines about how the Trump administration is trying to strike down essentially the law which protects disability rights in America, Section 504. much validity is there to this idea that they're coming after Section 504? We'll talk about what it is in a minute, but I just want to start there.

0:02:17 Jenessa: So this is a big deal. This is really serious. There is currently kind of competing public pressure campaigns of a lot of disability rights activist groups and law firms pushing hard on how bad this case is, and a campaign of the AGs who are suing over this to say, No, no, no. It's not that bad. We swear. We promise. It is really that bad." Yeah.

0:02:47 Matt: Okay. I'm sorry to hear that, but let's start at the beginning because I will tell you straight up that I don't know anything about this. So what is Section 504 and what does it do? What has it been doing?

0:02:57 Jenessa: So Section 504, it's specifically a section of the Rehabilitation Act of 1973. And that is the predecessor of the Americans with Disabilities Act, the ADA. That's what people might be more familiar with. Up a lot. And I think... The reason for that is probably because the ADA protects your individual rights when it comes to private businesses. Think it might help to actually draw an analogy to the civil rights fight for racial equality, because I think... It's more familiar to people, and also the compare and contrast there can show how much weaker disability rights protection really is, where... racial discrimination, we got the 14th Amendment, right? And it says equal protection for everybody. And they didn't specifically say black people, but it came out after the Civil War. So we know what you meant. Except, no, we didn't know what because it took until 1954 in Brown v. Board of Education for somebody to say, hey, seriously, separate but equal, not actually equal. When the court said no racial discrimination, equal protection of the law, 14th Amendment, that's going to apply to the federal government and to the states equally because the 14th amendment has been incorporated out to the States. To then get private businesses to not discriminate, you needed the Civil Rights Act of 1964, and Congress is going to say, under our power to regulate interstate commerce, we're going to tell private businesses the analogous component for disability rights. Yes, technically, the Equal Protection Clause will also apply, because it doesn't name any groups, right? But... Racial discrimination under the Equal Protection Clause gets strict scrutiny. So your law that ends up racially discriminating can only survive if there's a compelling government interest and the law is narrowly tailored to fit that. That's a really high bar. Disability discrimination only gets rational basis protection.

0:05:06 Jenessa: Because the have just slowly carved out how the 14th Amendment will protect some people more than others. Can think about for gender discrimination, for example, they had to come up with that intermediate scrutiny. That,

0:05:19 Thomas: Remember at some point getting this explained and I wondered like wait what is intermediate scrutiny for it sounds like it's for nothing but it was for like one carve out was

0:05:27 Jenessa: There's a couple of groups that will get strict scrutiny. There are women and one other thing. I think it's a certain parental rights thing is going to get intermediate scrutiny. Then there's a bunch of other groups that it's like, well, yes, technically all groups get equal protection of the law, but we're only going to give you rational basis protection, which is like nothing.

0:05:44 Thomas: Separate but equal though separate standards of review but everybody okay well

0:05:50 Jenessa: So the Constitution doesn't say anything about disability rights. So now what are we going to do? Congress will pass the Rehabilitation Act in 1973, and a bunch of it is programs for people with disabilities and, you know, kind it's of in the name, rehabilitation, vocational training, occupational therapy, that kind of thing. 504 of the Rehabilitation Act, what it's going to say is that you need to not federal government, Congress, I can tell myself what to do. Don't discriminate on the basis of disability. If you're receiving federal funding, you cannot discriminate on basis of We don't have an amendment that's incorporated out to the states, but that's how we're going to like get around this separate. Well, not get around. That's how this power of the Fed to tell the state what to do. And then the ADA will come out in 1990. And among other provisions, Title III is the big one people know for. Hey, private businesses, you can't discriminate on the basis of disability. There's also a lot of employment protection. It creates a private right of action to sue against disability discrimination. That is wildly under attack right now also. Standing to sue over disability rights violations is just getting crushed right now. Courts have a habit of just saying like, well, if we let everybody sue over every violation, the courts would be swamped. And it's like. Don't know how that's our problem. You know, you could

0:07:23 Jenessa: Just stop violating the law.

0:07:23 Thomas: You should have thought about that maybe if you did some cleanup on the courts or something I don't yeah I don' know what you're supposed to do about it anyone who needs this

0:07:30 Jenessa: Like if every single business could stop violating The ADA, that would really that would keep them out of court.

0:07:36 Thomas: You what, can we build a courthouse for or something? Like an additional, like a donated courthhouse with some judges?

0:07:42 Jenessa: Separate courthouse, you might say.

0:07:45 Thomas: No, we can add it into the system, yeah.

0:07:45 Matt: But equal.

0:07:48 Jenessa: Yeah, that's kind of what we've got going here. We have the Fed telling itself and the states through Section 504, you can't discriminate. And then the ADA saying private business, you cannot discriminate.

0:08:02 Matt: Definition of disability must have evolved over time since the 70s. I assume we must have... I mean, because we have things now that we call invisible disabilities like ADHD or autism, right? Were those kinds of things included originally?

0:08:14 Jenessa: Oh, OK. Yes and no. So the in the community, yes, of course, we have evolved and adapted in our thinking. In the law, really, no. All right. I'm going to give you up front. These definitions are insensitive, to say the least, especially in the way they're going to talk about the groups they purposely exclude from this.

0:08:38 Thomas: Always a bad sign. There's a lot of areas of law like this where like, okay, I'm going to read you the current law trigger warning content note on the current laws.

0:08:45 Jenessa: It really, oh, get ready. Really. I the thing is like it's a legal definition. It is important that we talk about it word for word because it's going to come up here. But. It's not the language I would use today. So the Section 504, the Rehabilitation Act, and the ADA are going to use the same definition of disability and the same definitions of all the people that we explicitly decide don't have a disability and that we would like to kick out of this law. Of those, I think, are for obviously intentionally discriminatory purposes, honestly, from the time the law was drafted. Kind of depends on what you mean when you say, has the definition evolved?

0:09:27 Thomas: Well, here's what I know. As the definition of gun changed, we're happy to allow, well, okay, that's already a bullshit premise because the modern gun rights started in like 1992, essentially. But like, yeah, like we're to say, oh, this gun, this guy, this kind of that means arms, you know, so you think that the same should apply to like a disability should be like as many disabilities as, the as gun companies can manufacture for

0:09:52 Matt: I do want to ask, though, just before we talk about this, where is this coming from? Because you mentioned both the ADA and Section 504, and you also said that the ADA is somewhat replaced, but did it actually supplement 504? How do they play together?

0:10:03 Jenessa: I'm. I would say it mostly supplements it. In ways, it's much more expansive. So for example, the Rehabilitation Act had nothing to say about private businesses. Other ways, I the way I would think of it is like Section 504 and the Rehabilitation Act are like the ground floor and the ADA is like the second floor.

0:10:21 Thomas: The ADA is the ramp up to the second.

0:10:23 Thomas: Sorry, I couldn't. It was right there for you, you know?

0:10:24 Matt: There you go. It's accessible. Yeah, not

0:10:28 Jenessa: Of... In some ways, yes. So the ADA made it easier to enforce the Rehabilitation Act. It expanded parts of the Rehabalitation Act and it had additional aspects. I tried looking for scholarship on like... How would the ADA work without the Rehabilitation Act? And there's nobody writing about it because nobody even thought about this possibility of losing this even more foundational piece. Really hard to imagine losing the concrete foundation out from under your house like what your house would still look like.

0:11:04 Thomas: Not good. We'll just say not good.

0:11:06 Jenessa: They're very much built upon one another. I suppose in theory, the part of the ADA that only talks to private businesses could stand. So maybe the Fed could still tell private businesses not to discriminate, but the state would be free to do so. That seems odd.

0:11:21 Thomas: That would be weird.

0:11:23 Matt: Great.

0:11:24 Thomas: What?

0:11:24 Matt: But just to be clear, though these definitions are the same in both laws. Okay.

0:11:29 Jenessa: Yeah. So, okay. So here's what we've got. Guess I should back up and summarize, like, what exactly is this lawsuit doing? Why we care about the definition in here? Because the lawsuit is going to hinge on a piece of this definition. We've got... states here. Texas Attorney General is the lead plaintiff, which I think is jurisdiction shopping, almost certainly. Defendant is Xavier Becerra, the former head of Health and Human Services under Biden. So if you want to learn more about this, Texas v. Becerra, there were a bunch of them. Texas sued him a lot. So you have to put in Texas v Becerra. Section 504. There's also Texas v. Becerra, which is the EMTALA case, the abortion case that people are really focused on. So distinguishing all the different Texas v Becerras, this one, what they're looking at is there's two questions, basically, a narrow question and a really broad one. Happened was kind of near the end of the Biden administration, Becerra put in place a regulation that said, hey. We've got this definition of disability. We'd like you to include gender dysphoria. We are telling you that it is our opinion. Gender dysphoria should be included in this. So you should extend all of those employment protections and protections from discrimination for people who are experiencing gender dysphoria. The narrow question they're going to sue on is, does gender dys phoria actually belong in this definition? Broad question is, hey, can the Fed even make us do this? What about all of these disability protections? I don't think we should have to do this at all. That's the one that really got people up in arms. Not that we shouldn't care about the trans rights issue, but we kind of knew they were going to come for that. You read halfway through the document and all of a sudden they say all of Section 504 is as applied, unconstitutional, you can't make the state do this.

0:13:26 Jenessa: It gives us a window into how Really, traditional conservatives, not like MAGA weirdness, are thinking about this separation of powers issue because this is extremely broad the way they're going to speak about this. So about the gender dysphoria part because it's interesting and it's the thing that got the case started and then move into what talking about with Section 504 specifically. These are the definitions we've gotten. Like we said, it's the same for 504 and the ADA. Disability means with respect to an individual, a physical or mental impairment that substantially limits one or more major life activities of such individual, or being regarded as having such an impairment. That last one is just to close a loophole that like if you discriminate against somebody and you were like, oh, it's because I thought they had a disability, but then turns out they didn't. So I get away like, no, you don't get away with that. So that's mostly closing that loophole. The record such impairment, that's history. Main one is that one or more major life activities. That part's really broad. So that allowed for flexibility as our definition of disability kind of moves forward as a culture, there is flexibility there. Like what it mean to have a major life activity be substantially limited? You can think of that as really flexible. And so naturally they wrote the law to not be flexible because then they wrote a whole bunch of people who are not included in this. There was a big fight at the time. And remember, this was being passed in 1973. And then the ADA in 1990, there was a huge fight about we should not include people with HIV and AIDS. Know. Just why be nice when you don't have to? They end up writing a section that's like, oh, if you have an infectious disease that would directly impact your job, then you can't. But not if you're just being discriminatory about the fact that somebody has a disease. Right. We all agree on that. So like that didn't get in the like no AIDS provision, didn't make it into the bill, which was a huge fight. But the people who did get explicitly excluded by name, even though these things obviously do. Substantially limit one or more major life activities. Who is currently engaging in the illegal use of drugs. So they have a bunch of little like, oh, if you're currently in rehab, that's okay. It's not clear if that means like if you have a relapse, like what exactly is currently in illegal use drugs is really difficult to figure out. Homosexuality or bisexuality. Don't know. Nice to get a call out, I guess, as not disabled.

0:16:14 Jenessa: Then here's our list that's interesting. Transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments or other sexual behavior disorders, compulsive gambling, kleptomania or pyromania, psychoactive substance use disorders.

0:16:37 Matt: It's quite a list.

0:16:38 Thomas: It's a bunch of groups that like back then were like, but we still want to be able to be mad at the following groups of people. Like we still wanna be able, yeah.

0:16:45 Jenessa: Yeah, yeah. Want to protect people in wheelchairs, but not you. That's...

0:16:49 Thomas: Not druggies and kleptos and yeah, okay.

0:16:53 Matt: And gamblers.

0:16:54 Thomas: And gamblers.

0:16:55 Matt: And people with gender identity disorders. They all end up in the same provision. This is all you're reading from one statute here.

0:17:01 Jenessa: It's different sub -sub paragraphs, but yeah, it's all one statute. These are the... No, not... I know it's substantially limiting one or more major life activities that you are currently in rehab for a substance use disorder, but

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0:18:56 Jenessa: Is where it's going to get weird, where the kind of textualist argument of legislative like, intent. Did they intend to include trans people? No, they clearly intended to exclude them. On the other hand, their intent was to be assholes. It's a bit of a rough argument.

0:19:14 Thomas: The originalists love that, though. Hey, they intended you gotta, you know, you gotta pass a constitutional amendment that's impossible or something in order to undo that.

0:19:22 Matt: The last revision to this in 1990 with the ADA? Has this statute been revised since then?

0:19:26 Jenessa: The definition has ever been updated. So, like, if you go on Westlaw right now, this is the definition.

0:19:32 Matt: I'm going to go ahead and do the thing I always do and jam immigration into this and remind everybody that until 1990, you could be denied a visa if you were gay on the grounds that you were a sociopath, a psychopath rather, or that you had specifically some kind of... What's the word? You could be denied that.

0:19:49 Matt: And there was a pretty significant movement on the part of doctors to basically as a protest to not check that box when they had to do the medical exam for immigration. Eventually it did change. But within our lifetimes, we're talking about people being denied visas for the way they're born. And so this is certainly consistent.

0:20:06 Jenessa: Yeah. Yeah, and think that's exactly what's going to be at issue here, is this is THE definition right now. And so what they're going to say is when you tried to put in this rule that says gender dysphoria should be included, their is just going to be, no, look what it says. It says gender identity disorders not resulting from a physical impairment is excluded. Isn't that the same thing?

0:20:29 Matt: It does sound like dysphoria, doesn't it?

0:20:32 Jenessa: It does, it ish.

0:20:33 Matt: I'm not an expert, but sure.

0:20:35 Jenessa: I think you can make, I think could make a reasonable legal argument that it is intended to be the same thing. There is, however, first of all, from a psychological, like, hammer, everything's a nail. So I'm going to just fall back on my psych degree. Is absolutely a distinction in psychology. Homosexuality out of the DSM. What we did with gender identity disorder, that came out of DSM, so the Diagnostic and Statistical Manual that's used to diagnose mental health disorders. Identity dysphoria came out, but gender dysphoria went in rather than just removing it. So why would you do that? Homosexuality, bisexuality, all of that can see disproportionate amount of psychological stress. It became very clear the sole explanation for that was the way other people were treating them.

0:21:30 Jenessa: So a gay person living in an accepting home and an accepting society doesn't have any more stress than anybody else. So certainly you can still benefit from talk therapy for dealing with your life stress. But the appropriate diagnosis there is like. Temporary, yeah, temporary adjustment disorder, also known as, I want your insurance to pay for this disorder. Just, you know, the box you check for people who could use some help in talk therapy, but clearly don't have some sort of actual diagnosis they need help with. It comes to gender identity disorder, that's gone from the DSM. Because it's not a disorder to be trans.

0:21:48 Thomas: Society needs a prescription. Right.

0:22:17 Jenessa: Dysphoria is different. And the idea there is some trans people, not all, will experience dysphoria about their body. Look down, this is not the right body, and extreme distress. And there are diagnostic criteria for this for different than just, you know, nobody thinks their body is perfect. Nobody loves their whole body head to toe. But what is this specifically? How to distinguish this from just, I don't know, puberty. Everybody hates what puberty is doing to their body when they're a kid, right? So it's different from that. It is different from the typical body dysmorphia. What is gender dysphoria? Sorry. Criteria in the DSM that have been changed, and it's meaning to indicate even in an accepting, loving home, in an therapy it's gender affirming care that is the accepted medical treatment but it is an intervention and it also by having diagnostic criteria there is something you can put on the health insurance form and that gets your stuff paid for so

0:23:30 Thomas: That's what I was thinking we were talking about. It's like, yeah, being gay doesn't need a treatment per se, other than, you know, like the stress of being in a homophobic environment or whatever. But like being trans or having gender dysphoria may need the treatment of gender affirming care. So is it as simple as that?

0:23:40 Jenessa: Pretty much that's pretty much what it's getting at is that being trans just life. That's diversity. Experiencing gender dysphoria, that's distressing, and there are things we can do to help. That's separate.

0:23:58 Thomas: Let me

0:24:00 Matt: The concept of gender dysphoria, phrase the is fairly new. I think it's only 10 or 15 years old, right? So this certainly wasn't even available at the time that they wrote this.

0:24:08 Jenessa: So actually, I thought this was pretty cool. I don't know why you would put this in your own complaint, because in my head it is so damning. Maybe it's just because it's convincing to me. There's a case they're citing in their complaint from the Fourth Circuit where the court nailed it. They pulled out this stuff about the DSM and they said, hey, it's probably meaningful that they didn't just change the name. They took out this gender identity disorder. They put in gender dysphoria and changed the criteria. So gender identity disorder, the thing that's named in this definition for the ADA in Section 504, that doesn't exist anymore. Gender dysphoria did not exist as a diagnosis in 1990 when the ADA was written. So it is different. And they talk about, you know, clinically significant distress, a subset of transgender people. So that's also critical is we're not just saying as a category, all trans people, it'd be no. The reason it's qualifying for some sort of disability protection would be. For the person experiencing the dysphoria and trying to access medical treatment that that specific aspect of it would be protected. So I see the argument that that's a little weaselly, but I can also, from a psychology perspective, it's absolutely a different thing.

0:25:30 Thomas: Make sure I'm following. So we're talking about this, about the definition 504 that is people who um be discriminated against because of whatever the thing is by the government was

0:25:44 Jenessa: It's going to be the Fed and the state. The ADA will then also cover private businesses.

0:25:48 Thomas: So then those folks back then when they wrote it were like, hey, we want these degenerates to not be counted. And so they had like, you know, some carve outs. And one of the carve outs was like transvestitism and like anyone with gender disorders. Is that what the wording was? Something like that, right?

0:26:05 Jenessa: These are the relevant ones. Transvestitism, transsexualism, gender identity disorders not resulting from physical impairments.

0:26:16 Thomas: So So then I'm just making sure I'm following following all the nuances here. So then we're talking about like kind of the updates to how this is understood psychologically. And it's almost like maybe intentionally so that wording has been changed. And also it sounds like that's just a valid way to do it. Now it's like, well, now this thing isn't really one of the things that has specifically been excluded. So therefore it probably should be included, right?

0:26:39 Jenessa: Yeah, pretty much. And that's how the Biden administration approached it, is they were saying very explicitly, making sure they use this language, gender dysphoria should be considered to fall within this definition. That was in, believe I it was May of 2024, they put that rule out. And then this lawsuit will drop in September of 2024 saying, no, we don't like that.

0:26:42 Thomas: Gotcha.

0:27:02 Matt: Just, want I to be just very clear for listeners that we're talking about rulemaking, obviously, this administrative executive rulemaking that interprets the statutes and tells the agencies how to do things. They can't change the statute, but they're basically, and I think I would argue here, it seems like that they are bringing the law up to date with the science. They're saying that this is, you know, because obviously you're saying, I just double checked, gender dysphoria was introduced in 2013 to replace gender identity disorder. So this is pretty recent.

0:27:27 Matt: And so I think it makes sense to, this is what rulemaking is supposed to be about, to keep things flexible and update when Congress hasn't. It's, as you're saying, now that I'm looking at this, I'm seeing it makes total sense that this isn't in conflict necessarily. It's just an update.

0:27:40 Jenessa: So I think in a first read, it sounds like, oh, well, obviously it doesn't fit. And certainly if we think from an intent perspective, yes, they intended to exclude the people they don't like, and that means you. From a perspective of having any growth with the times and the psychology understanding, yeah, gender identity disorder isn't a thing. And it never a thing, really. And gender dysphoria, there is good science behind the idea of that's an internal distress people experience that is medically relevant.

0:28:19 Thomas: So here's my other dumb question, because we're talking about, so this isn't the only layer of protection. So you can talk about like, oh, homosexuality not included. So, but but, obviously you still can't discriminate against gay people, but for a different civil rights act or something like a different layer of or whatever.

0:28:34 Jenessa: So, really. I mean, I don't think there's any kind of, right?

0:28:37 Thomas: You

0:28:40 Matt: Not, I mean, not under Bostock, right? I mean that's, that was the whole point of Bostok was Title VII.

0:28:44 Jenessa: So it's very recent that we have that. Yeah, yeah. No, no, no. So individual states. Yeah, yeah yeah.

0:28:55 Thomas: But point is um thing I'm wondering is or this does this create a weird carve out where like you could fire someone for being trans but not if they haven't transitioned and are going through gender dysphoria it's kind of interesting

0:29:04 Jenessa: Guess so. Yeah I mean this is a... a very limited way to try to protect. I think it's very specifically trying to protect when a person is going through medical transition, you know, hormone therapy or surgery or whatever, trying to it fell under, if you put that under Section 504 in the ADA, it would fall under employment discrimination, reasonable accommodations, you still having access to state services, that kind of thing. Yeah, I guess in theory, you could be like, congratulations on your finished, you now you're fired. I guess Bostock would kick in at that point.

0:29:45 Matt: Yeah. Well, I was actually going to mention Bostock because obviously that was a big leap forward in 2020, thanks to Neil Gorsuch, actually. He had something to say in that about the fact that maybe the people who adopted the Civil Rights Act wouldn't have thought this was the result. This isn't something they were thinking of at the time. It's almost as if law is living and flexible. But the limits of the drafter's imagination supply no reason to ignore the law's demands. Only the written word is the law, and all persons are entitled to its benefit. And he was saying, of course, he was just doing a strict textualist analysis in that case. I like the idea that just because the people who wrote the law couldn't have possibly imagined that we end up here doesn't mean the science isn't correct. It doesn't

0:30:19 Thomas: Again same with guns they had no idea what kind of guns we'd have can't

0:30:24 Matt: Yeah, just bump stocks. Sure. Never could have seen it. So I think that this, obviously, and I know we all certainly agree about the importance of trans rights and trans lives and doing whatever we can to protect them. So that's where we're coming from on this. So, can see where the Biden administration was coming from in this rule. Now we have the AGs coming in and saying that, as I understand it, they're arguing that the entire Section 504 is unconstitutional, just as their opening salvo in this thing. Doesn't sound right.

0:30:49 Thomas: Be right this

0:30:50 Jenessa: So so yeah. Here's the prop. Oh boy. Where do I start? Okay.

0:30:55 Jenessa: So here's what ends up happening. The opening of this whole thing, like the first 30 pages, are all why we shouldn't have to protect trans people and why gender identity disorder and gender dysphoria, that's technically the same thing under the blah blah blah. But if you read the whole thing because you're a lawyer and you care, then it just gets to the point where it says, I'm

0:31:20 Matt: I mean, there's literally a heading that says it.

0:31:22 Jenessa: Yeah, I know. It's a heading. Like, how do people miss this?

0:31:24 Matt: They're going to deny it later, but it's right there.

0:31:27 Jenessa: Says, count three, section 504 is unconstitutional. The Rehabilitation Act, no otherwise qualified individual with a disability in the United States shall, solely by reason of his or her disability, be excluded from the participation and be denied the benefits of or be subject to discrimination under any program or activity receiving federal financial assistance. They will go on to say that is just unconstitutional. The rationale here, if you remember the big Affordable Care Act case. Where they got rid of the requirement to expand Medicaid. Is it Medicaid? Medicaid. ACA lawsuit, essentially what happened was the court said, hey. Usually the federal government can condition funding to the states upon the state doing something they ask them to. That's how we got a federal drinking age, is they were like, hey, we won't give you the 15 % of your highway funding that we contribute unless you, state, set the drinking age. Because Congress clearly does not have the authority to do that otherwise. And everybody would rather have their funding than insist on... you know, drawing a line in the sand about 19 year olds drinking. And it's related to highways because drunk driving is a problem. There you go. Problem solved. OK with the Medicaid because you were telling them you would pull all Medicaid funding if they didn't participate in this. And that's so much money that it's coercive and that they don't even have the opportunity to say no. And I can't even say this in a way that doesn't

0:33:09 Jenessa: Sound like I can't put it in a non sarcastic voice. It's like. Maybe there is some, it bad, right? Like maybe I just don't know what I'm talking about, but it was really restrictive. And it just said like, you can't force a state to expand Medicaid, even though you federal government were going to pay 90 % of the expansion cost, whatever. Literally going to argue the same thing here. They are going to say under that reasoning in the Sebelius case. You can't say that because we accept any and all federal funding, we can't discriminate against people with disabilities. That's not fair. Struggle to even put this into words. Like your argument, at least the Medicaid argument was you're trying to ask us to expand a program and that's not there. This is saying you're

0:33:09 Thomas: Dumb It's bad reasoning. It's not good reasoning.

0:34:02 Thomas: Yeah, you can ask me nicely, but not if it's going to cost me money. Then I, for some reason, I mean, it just boils down to the result you want. It just boils we don't like this, so you can't be mad at us if we don'T do it.

0:34:16 Matt: Other things are there that pull federal fundings if states don't cooperate or comply? I mean they're just picking this one. Like you said, they just don't want to do it.

0:34:22 Thomas: Now we do it where Trump himself pulls funding if they don't like Trump personally, like Columbia University or something.

0:34:28 Jenessa: Well, this is my exact concern, actually, is one possibility is they don't like this and they don' want to do this and their cherry picking. I am concerned that this is a test for can we be forced to do anything? You know, I know right now is a climate of wouldn't we love if the federal government couldn't make the states do anything because we don't like what the Fed is doing right now. But it's important to remember the history of how often the, oh, states rights, we want to do what we want was just because the states wanted slaves and the states might sound nice right now if Trump couldn't tell New York what to do, but in the long run, this is not a good thing if

0:34:44 Matt: Yeah

0:35:15 Jenessa: People invoke this to just say, you can't condition federal funding on me not engaging in disability discrimination. That's like so over the top.

0:35:26 Matt: Just to sit on this for a moment before we move on to the rule, the states later came back because obviously there was, for good reasons, there was quite a reaction to this lawsuit. And they came back and they said, well, no, we're not actually trying to say that Section 504 is unconstitutional, despite the bold subheading I'm looking at here from count three. Did that that happen? What is the argument there that they did backpedaling on this?

0:35:46 Jenessa: I can't. First of all, I don't know because it doesn't make any sense.

0:35:50 Matt: Okay, just checking.

0:35:50 Jenessa: Yeah. If you felt like if you read this joint status report and thought that doesn't any sense, you're correct. Here's what happened. File a complaint. And Right. Like a complaint is where you write the facts of what happened and the argument you're planning to make a little bit. And. Say, here's what's going on. And we want to argue, first of all, that that rule, the narrow question, that rule shouldn't work. Broad question, get rid of Section 504. And then there's all our little brief things that are happening, all the little let's get ready for a court case. And this whole election happens. This gets filed in September of 2024, which in my my conspiratorial thinking is like, yeah, so this wouldn't get in the headlines because we were a little busy thinking about something else at that time. Kind of sweeps under the radar and then we get a new administration who obviously would never have written this rule themselves, right? Becerra of Texas v. Becerre is not here anymore. It's RFK Jr. So,

0:36:52 Matt: I was going to ask that. Why is it not Texas v. Kennedy now? They usually update these things.

0:36:57 Jenessa: So OK. When Becerra was still there, but it was the Trump administration because he didn't like it's not like he got kicked out immediately. We were like still waiting to figure out if Kennedy would get in. He signed on to an unopposed motion for a stay. Basically, the plaintiffs moved for a day and he didn't oppose it because Trump put out his what was that executive order defending women from gender idea, blah, blah.

0:37:26 Jenessa: And was like an agreement of like, yeah, that might change this, wouldn't it? RFK Jr. gets in and you would think. You said, this is an executive office rule making. He could get rid of this instantly. If he just got rid of the rule, that would moot this case. Not just do that? Could get They have been filing just like every month or so a, can we just pause it one more time? Can we pause it and now they're doing it as joint status reports.

0:38:00 Matt: I'm looking at this joint status report. And this is pretty unusual because the parties, clearly, RFK does not disagree with the state AGs in the end, right? And so we know they're going to get the same result. The mendacity here of plaintiffs clarify that they have never moved and do not plan to move the court to declare or enjoin Section 504 as unconstitutional.

0:38:05 Jenessa: Of course.

0:38:20 Matt: Read the brief, man. It's right there. There's a whole section entitled that it is unconstitutional. Okay, that aside,

0:38:26 Jenessa: If you wanted to say, oh gosh, I don't know what kind, I must've had a stroke while I was writing this. I didn't mean to say that. You could amend the brief. You can amend your complaint to take. Yes.

0:38:36 Matt: You could strike that, that whole count. Yeah, of course.

0:38:40 Jenessa: So I think this is intentionally deceptive. I really do, because I know people who were up in arms and saw that document come out and said, oh, we're OK. And I was like, no, no. No, we are not OK. It's still in the complaint. It doesn't matter because this joint status report thing, this is normally reserved for like. Discovery planning and like planning the trial schedule. This is not for making arguments. It's joint. It's supposed to be the plaintiffs and the defendants agree. So you normally agree on a discovery plan. You don't normally agree. On the arguments you're going to make. And what I really meant to say was like, that's not a thing opposing parties agree on. It is only because it's RFK Jr. Now I,

0:39:26 Matt: Well, I guess my thought would be then that HHS is going to be moving, obviously, to withdraw this rule, and they're just going to keep it in a holding pattern until they're sure it's dead. Is that the idea? Maybe?

0:39:34 Jenessa: I I am concerned that really what's going on is preserving this case because if you just got rid of this rule, it would be mooted out, right? And Kennedy could have done it the day he walked in. So why didn't he do it? I think they're trying to preserve this because I think want to find a way to get this ahead.

0:39:58 Thomas: They just rewrite the rule, right? Because it's just a federal, yeah.

0:40:01 Jenessa: They I could think just strike the rule with the stroke of a pen. Why keep asking for, they ask for a pause and then they get it. And now they've asked for a Pause and they have to on April 21st, I think it is the next, what are we going to do next report is due again. And it's like, why would you not just kill this? I think It's because they don't want to kill it. I think they want this to go forward. And I think don't amend the complaint to take away that constitutional part but they do put in the joint status report like no no no we're just talking about an as applied challenge and I'm like yeah what I care about the way it's applied like that's the the thing the whole thing is the way we're applying it and

0:40:46 Matt: Also, don't read it that way from the count.

0:40:48 Jenessa: Not at all. And like the pressure campaign is working against these AGs. They're getting on the news. They put out public statements. They are saying like weird contradictory stuff. Here's one from the Nebraska Attorney General. The lawsuit because of a new overreaching federal regulation that hijacks Section 504 for political purposes. And threatens the way Nebraska provides mental health services. He appreciates the importance of Section 504 to disabled Nebraskans and the parents of children with disabilities. As shown in the status report filed last night by the states, the primary purpose of the complaint is not to challenge Section 505. would you know if it's going to be threatened in the middle of the law? You wouldn't know until after the courts. That mean?

0:41:47 Matt: And you signed on to the lawsuit to threaten it, to take it down.

0:41:52 Jenessa: Bunch of these AGs are saying this statement and I'm like, are you a lawyer admitting you didn't read the complaint you signed on to? Like, I don't know what you're saying right now.

0:42:00 Matt: I yeah, and of course, I disagree with the argument they're making about the rule, but it would be fair game to come for the rule and to file a lawsuit over that. But this is just in terms of lawyering. Yeah, this is incredibly broad, and I see what you're saying here.

0:42:14 Jenessa: I think it's because the disability rights community has been hounding them. Their phones are ringing off the hooks and they are just trying to. People that this isn't what it is, that that these services are at risk. And, oh, we'll pull out of it if it looks like your services are a risk. That's not how the legal system works. There would be no way to know what the judge is going to do until they do it. And once they do, it you can't undo it. So, no.

0:42:46 Matt: Guess just to spell this out for us, because you are a disability rights specialist, what would happen if Section 504 disappeared tomorrow?

0:42:53 Jenessa: So basically, hey, lead plaintiff, their state governor uses a wheelchair so they wouldn't have to have ramps and elevators in the building he works in.

0:43:03 Thomas: Have the opportunity to do the funniest thing.

0:43:07 Jenessa: Know, your federal government buildings, in it as applied, meaning the Fed can still tell itself what to do, then your federal development buildings would still have to be accessible. But how often do you go in a federal government building? State runs your schools. So one thing that's a comparison to draw, people might know about the IDEA, the Individuals with Disabilities Education Act. That's where IEPs come from, individual plans. IDEA lists 13 specific disabilities that you can get an IEP for. You don't have one of those, you can't get an IEP. But you can still get a Section 504 plan, which is a plan that more broadly defines disability and says, let's accommodate you. So maybe that means your kid doesn't get special education, but they do get breaks. They do need to have a ramp to get a wheelchair into the building. They need some kids with low blood sugar. They And tons of kids have those. And that would no longer be the law. Public education is like the favorite of this administration. So I think that's all part of the plan. Just one example of things your state government does for you is state schools. But it's everywhere, everywhere your state would no

0:44:34 Jenessa: Want to hear some inspirational stuff instead?

0:44:36 Matt: Please. What else you got? I was really taking that in.

0:44:39 Jenessa: Is this so important? Yes, obviously, because of the rights it gets people. But it's also really socially important to the disability rights community and how hard people fought for this. Might be familiar with the Section 504 sit -ins. You ever watched the movie Crip Camp. Which Michelle and Barack Obama produced it, actually.

0:45:00 Jenessa: Judy Heumann is one of the... civil rights leaders for disability rights in general, but she's also the one who was huge in leading this protest. How did we get Section 504? Was It signed in in the Rehabilitation Act of 1973, but it didn't actually get enacted until 1977 because the Department of Health, Education, and Welfare, they were supposed to put out regulations enforcing it, said so in the law, and they just kind of didn't. There was no deadline. They sued to say, you have to put out regulations. And the judge said, yes, you're right. And they didn't put a deadline. And there were bouncing around regulations and committees for a long time and just not signing it. And so we're busy. We're thinking about it. We think about it and in the meanwhile, if you're not enforcing it, like the schools are still not accommodating kids with disabilities. They walked in and they said, you know, the letters all went out. You better sign this by April 4th. April 5th, they go into the D .C. office and the regional offices for health, education, and welfare all over the country. And the thing is, you can't walk in there with a sleeping bag and five days of meds or they know what you're up to. So a bunch of people with disabilities and people who care for them came in and said, we're staging a sit -in. They stayed there for a month. And people there's there who need feeding tubes and oxygen. And they came in and it was like, you've if ever heard of a hunger strike, now we've got an oxygen strike.

0:46:34 Jenessa: And, you first it was like, well, you can't leave and go back. And, no, nobody can bring you supplies. But it starts to be a real bad luck when somebody's like, I'm going to die if you don't bring me oxygen. So they started letting people bring oxygen and food and supplies. The mayor's office in San Francisco sent cots over to them. Black Panthers were providing daily hot meals for them. When the phone lines were cut to try to get them to leave, deaf people just signed through the windows to ASL interpreters so they could keep talking to the news. It worked. Took a under a month of camping out, particularly the San Francisco office got the most attention and the regulations got signed. It was a really big deal and it took a lot of effort.

0:47:21 Thomas: That's just for them to do a thing they were already supposed to do legally? And

0:47:25 Jenessa: Yeah, pretty much. Just there was no deadline. So they said, you have a deadline. It's April 4th. And on April 5th, we will be camping out in your office. It got it done.

0:47:35 Matt: The analogy to Brown v. Board. And of course, you know, that's what it took for the civil rights fight, too. Here, and that's a great story. And it's good to remember the fights that get us to these places and how important it is to preserve these rights.

0:47:44 Thomas: That it's never been about asking nicely and conveniently. It's never, ever what it is. Because

0:47:49 Jenessa: It's very inconvenient to have people camping out

0:47:53 Matt: That kind of visibility on the issue too, it's so important. I wanted to ask what it means to you to be an advocate and to be attorney for disability rights, just kind of to close out here, how you got into it and what it

0:48:07 Jenessa: Concerning for myself for my clients you know I have adhd and that's not listed in the idea I um you

0:48:15 Thomas: We forgot to do it. We were supposed to, like, email them and we just we fucking, all forgot. It sucks.

0:48:17 Jenessa: Oops yeah

0:48:21 Matt: It was a long list.

0:48:24 Thomas: Yeah. Yeah,

0:48:25 Jenessa: Can theoretically get an IEP with an ADHD diagnosis, but it has to like be severe enough to qualify for this like other category of like other form of health impairment, whatever. But like, I definitely could have, you people were diagnosing girls in the 90s, I totally could have gotten a 504 plan for like, can you just stop yelling at her for looking out the window? Like that's the 504

0:48:49 Matt: I think we feel that. Yeah. Yeah, collectively. But I just want to be clear. I was asking, and I appreciate you sharing that, but I was kind of what it means to you to do this work every day.

0:48:50 Thomas: We three.

0:49:00 Jenessa: Oh. Yeah. Oops.

0:49:01 Matt: No, no, that's great. I see how you took it that way as interpreting directly, what does this mean to you? But I'm just interested because I've never talked to a disability rights attorney before.

0:49:09 Jenessa: Ways it's nice because until very recently, this was very bipartisan. On the individual level, like your average person you talk to today, when I say like, yeah, I help make sure that, you nobody looks at me and goes, is that really necessary? Like, it's just it is something that just seems so obvious. And, you is the only minority group you can join. And if you live long enough, you will.

0:49:36 Thomas: You're Rachel Dolezal. But yeah, I take your point.

0:49:40 Jenessa: You will become part of this community if you know, the people I work with are so often like get the call all the time of like, listen, the poll workers are so nice. I don't want to get anybody in trouble. They were very nice to me. They just didn't understand this one thing. And it would be really nice if we didn't. And I'm like, you can be meaner about this. It's OK. So, you know, we do a lot of advocacy for making sure, you The vast majority of people I interact with are like, oh, wow, we just didn't think of that. I'm so sorry. Let's fix it. And this is why it's like that, because it's obvious what you should be doing. And most people understand that we just need a rule book to follow to make it clear what you do and don't have to do. So, yeah, I think it's really, you know, it's rewarding work and it's. Special and I get to work with all kinds of different people because anybody can have a disability.

0:50:45 Matt: Of course, the rulebook doesn't mean much if we don't have lawyers on the ground to enforce it. So that's what it's about.

0:50:48 Jenessa: Yeah. You know, that's actually, it's reminds me of a thing that, I left this out the other day when I was talking about my like, how did I get here? Tend to leave this out because it's, It's hard to talk about without getting choked up, but it's also like a sounds so cheesy. I feel like people won't even believe me. But like, you know, what was the thing that like finally scratched the itch to make me decide I'm going to do it? I'm gonna go to law school. It was some immigration lawyers, actually. Early in the Trump administration when they tried to. That Muslim travel ban going.

0:51:20 Jenessa: And, you these people who obviously have every legal right to enter the country and they're being detained and it's ridiculous. And there's protests outside the airports. And it's so inspiring to see people standing up for each other. But what really changed the tide was when the lawyers showed up. And you can tell because people don't usually come to a protest in a suit and tie. And there's these videos of them walking through the crowd saying to people like, hey, do you know who's in there? Are you a family member? Do you know their name? And they walk up to this barricade that's supposed to keep protesters out. And they say, hi, I'm an attorney. I'm representing this person. I need to go in there and see them. That was at a time when it just felt like, does the law even matter anymore if people are just doing things that are so illegal? And it did. It mattered that that was the law. And it mattered that it came out of a lawyer's mouth.

0:52:20 Matt: Did. Yeah.

0:52:23 Jenessa: The protesters could scream and yell all they wanted, but without a lawyer showing up, that's what really got it done. I just felt That's what sent me down that road. Not to immigration, but, you know.

0:52:36 Matt: Yeah, and Well, you can do the same thing now to make sure that somebody can vote, and I think that's just as important. Think it's good in these times when things are as they are that we can talk about lawyering as a vocation and as a calling and something that really matters, and I appreciate that. So it's really good to talk to you about all this. Thanks for sharing all that.

0:52:50 Jenessa: Of I do you want me to name all the states so people can call their representative and tell them to get off this damn lawsuit?

0:53:02 Thomas: Yeah, that's probably a good idea. Liked it when you named names last time.

0:53:06 Jenessa: Yeah. So if you live in these states, your attorney general is on this lawsuit and is really stressed out by how many people are calling them, telling them to quit this lawsuit. So you should give it a try, too. These are the 17 states, Texas, Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah, West Virginia. It's your attorney general. You need to call them and ask them why. Stop it.

0:53:43 Matt: And if they're not aware that they have signed on to a complaint that says that Section 504 isn't constitutional, let them have it. Let them know. Great. Yeah, yeah, good stuff. Also, I guess I just want to say that if there's anyone listening who knows of any trans attorneys or advocates or anybody who really is an expert on these things, we'd love to follow up on this because it's great to talk to a disability expert, but there's so many questions raised here that I still have that none of us are experts in. So I'd be happy to talk anybody like that if you want to send them our way.

0:54:10 Thomas: Alright, Dr. Jenessa Seymour, thanks so much for coming on as usual. And I hope to see you again soon.

0:54:14 Matt: Yeah.

0:54:15 Jenessa: Thanks for having me.

0:54:16 Matt: Stuff. Thank you.

0:54:16 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.