AG Kris Kobach wants Section 504 lawsuit amended amid disability rights concerns

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Disability rights advocates are calling on Kansas Attorney General Kris Kobach to stop his involvement in a multistate lawsuit challenging a federal law on disability rights.

As disability rights advocates spoke in a Statehouse news conference on Monday, Kobach told The Capital-Journal that he has asked for the lawsuit to be amended to remove the claim at issue.

What are Kris Kobach and other AGs suing over?

Kobach, a Republican, led Kansas to join as one of 17 states in a lawsuit led by Texas Attorney General Ken Paxton over Section 504 of the Rehabilitation Act. Section 504 is a federal law applying to programs that receive federal funding which prohibits discrimination against people with disabilities.

The lawsuit, filed in September, challenged a May rule change by President Joe Biden's administration to include gender dysphoria under the definition of disability. The lawsuit notes that the Americans with Disabilities Act explicitly excludes "transvestism," "transsexualism" and "gender identity disorders" from the definition of disability.

"The Biden Administration is once again abusing executive action to sidestep federal law and force unscientific, unfounded gender ideology onto the public," Paxton said in a news release at the time. "Texas is suing because HHS has no authority to unilaterally rewrite statutory definitions and classify 'gender dysphoria' as a disability."

While the lawsuit challenges that rule change by the U.S. Department of Health and Human Services, it also asks the court to strike down the entirety of Section 504 as unconstitutional and issue a permanent injunction against enforcing it.

In a statement to The Capital-Journal, Kobach said it was his intention to only challenge the addition of gender dysphoria and not the entirety of Section 504.

"We have already asked the coalition to remove the constitutional claim from the complaint," Kobach said. "It was entirely unnecessary. This case is a statutory claim, not a constitutional one.

"It is routine in complex civil cases for complaints to be amended several times as litigants add and remove complaints."

What is the status of the Section 504 lawsuit?

Federal court records show the case — which was filed in U.S. District Court in Lubbock, Texas — has been stayed ahead of a Feb. 25 deadline for a status report.

The U.S. Department of Justice attorneys on the case noted that President Donald Trump issued an executive order opposing "gender ideology" on inauguration day that requires "time to evaluate" the federal government's position on the case. They asked for time to meet with the state attorneys general to "address how to the parties wish to proceed in light of the recent executive order."

"We anticipate the Biden rule will be reversed," said Kobach, who also serves as chair of the Republican Attorneys General Association.

Democrats raise disability rights concerns

Rep. Alexis Simmons, D-Topeka, and Rep. Mari-Lynn Poskin, D-Leawood, were flanked by fellow House Democrats as they held a news conference Monday. They noted that Kansas has a history of supporting disability rights, most famously by U.S. Sen. Bob Dole.

"It's served us well since 1973," said Mike Burgess, of the Disability Rights Center, of Section 504. "It's a cornerstone disability rights legislation. ... It exists to make entities, requires them to be accessible to people with disabilities."

Simmons said a letter would be sent to Kobach, and Poskin said she would introduce a resolution in the House calling on Kobach to withdraw Kansas from the Texas-led lawsuit.

Pointing to lawsuit's requested relief, Poskin rejected the idea that the lawsuit isn't trying to declare Section 504 unconstitutional, as has been suggested by attorneys general in other states.

"I don't know how much more clear it can be about what the intent and what the demand is — and it is to make 504 unconstitutional and unenforceable in the state of Kansas," Poskin said.

Patrick Chapman, an adult with disabilities, spoke at the news conference along with his parents.

"Please just drop this lawsuit for me and for my other friends too like me," Chapman said.

Topeka boxer says fight against Section 504 is wrong

Tayler and John Cantrell, a local boxer known as "the Iron Man," spoke at the news conference.

"Like any good fighter, I know when a battle is worth fighting," John Cantrell said, "and this lawsuit against Section 504 is one that should have never been started."

He said their son, Cooper, lost half his brain at birth. Despite that, their son has defied expectations, which he attributed in-part to the assistance of Topeka's TARC Inc., the Capper Foundation and Farley Elementary School's special education program./

"These groups provide support, therapy and education the children with disabilities like Cooper need to succeed," Cantrell said. "They don't just help kids survive, they help them thrive. Section 504 is what makes this possible and ensures children with disabilities get the care and education that they need. It levels the playing field, giving every child, no matter their challenges, a fighting chance."

Cantrell said the lawsuit is more than a legal attack on a law.

"It's an attack on children with disabilities like my son, Cooper," he said. "It's an attack on families who already fight every single day to give their children a future."

The Cantrells voiced concern that without Section 504, their son might not have the same accommodations made for him, or entities may lose federal funding, such as for special education services. That could mean their son being segregated instead of integrated in the classroom.

"This lawsuit is wrong. It is a massive mistake and it must be dropped," Cantrell said. "Kansas should be fighting for its children, not against them. I urge our state leaders: do the right thing, drop this lawsuit, stand with families, stand with children with disabilities. This is one fight you do not want to be on the wrong side of."

A broader impact of anti-transgender politics

Simmons said the Cantrell family is being affected by "the immense hate that people feel towards the transgender community in this country." She said politicians "decided they wanted to continue punching down on the transgender population, and what that has done is throw entire other groups of people, vulnerable people, into the line of fire."

"It's totally inappropriate. I think it's incredibly un-American. And among other things, it's a waste of money. I've got a problem with this whole gender dysphoria focus. It is so not what we are here to do."

When told that Kobach said he has asked that the claim be removed, Simmons said that does not ease her concerns.

"This is a completely frivolous lawsuit that exists solely to punch down on vulnerable Kansans, vulnerable Americans," she said. "And for what? So they have campaign talking points? So they can go home and say, oh look at me standing up against these trans kids? I think it's ridiculous."

Rep. Tobias Schlingensiepen, D-Topeka, said this is an example of sweeping policy changes affecting people's lives in ways that were not anticipated.

"We have all kinds of policies that are now being instituted through presidential fiat that are affecting all kinds of people beyond what allegedly was originally proposed," he said.

Attorneys general react to backlash on challenge to Section 504

The lawsuit received little publicity until recently — about five months after it was filed — when disability rights activists nationwide raised concerns with the part of the lawsuit challenging the entirety of Section 504. When that happened, attorneys general in other states appeared unaware of that part of the lawsuit.

The lawsuit argues that Congress "crossed the line" with Section 504 because it "applies with extreme breadth" to any program receiving federal funding.

"Because Section 504 is coercive, untethered to the federal interest in disability, and unfairly retroactive, the Rehabilitation Act is not constitutional under the spending clause," the lawsuit states.

South Carolina Attorney General Alan Wilson said in his a statement that "there was no intention to throw out Section 504 entirely." Wilson also said that he believes Trump's executive order "resolves his concerns, so our mission is complete."

Iowa Attorney General Brenna Bird said the 17 states "are protecting Section 504 accommodations for students who need it."

Arkansas Attorney General Tim Griffin said misinformation had spread online, and that "our lawsuit does NOT seek to eliminate Section 504." In a later update, Griffin said "the states DO NOT argue that Section 504 is actually unconstitutional," despite count three of the lawsuit alleging "Section 504 is Unconstitutional."

"This statute has been on the books for 52 years," Griffin said. "If we wanted to try and get rid of it like some people have claimed, we could have sued anytime. But we didn't do that. We sued only after the May 2024 rule with the gender mandate."

Lawmakers credit public outcry for Kansas AG response

After finding out that Kobach said he wants to drop that part of the lawsuit, Simmons told The Capital-Journal that she credits the public outcry in Topeka and nationwide.

"I wholeheartedly believe that," Simmons said. "I would also say, if they didn't realize the implications of that, that is the definition of sloppy lawmaking and the definition of a waste of money."

"It's interesting that Kris Kobach would say that he might try to take that part out," Poskin, the Leawood representative, told The Capital-Journal. "That begs the question, why was it ever in there? That probably speaks to why he didn't advertise it very much. So no, pulling it out, just that section, they need to drop the lawsuit. That's the only thing that's acceptable."

Jason Alatidd is a Statehouse reporter for The Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on X @Jason_Alatidd.