Brenna Bird hid the ball on major disability case. Now she's lying about it

A federal lawsuit Iowa's AG didn't brag about

Iowa Attorney General Brenna Bird on the steps in front of the U.S. Supreme Court building on February 28, 2023. Photo first published on her political Facebook page

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Iowa Attorney General Brenna Bird enjoyed suing the Biden administration. She filed or joined more than a dozen multi-state lawsuits against the federal government during her first year in office alone. At least a dozen more lawsuits followed in 2024.

Bird has often welcomed media coverage of her legal battles against Biden administration policies. Her office issued many press releases to announce new litigation or joint letters challenging the federal government.

But Bird’s office kept quiet about one case, which Iowa and sixteen other Republican-controlled states filed in the Northern District of Texas last September. Texas v. Becerra could prove catastrophic for Americans with disabilities. Not only are the plaintiffs seeking to vacate a federal rule prohibiting discrimination against disabled people in health care settings, they are also asking the court to declare a 1973 law known as Section 504 unconstitutional and unenforceable.

After reporters began asking questions about that lawsuit last week, Bird and her staff lied repeatedly about the scope of the case and the plaintiffs’ goals.

THE HEART OF THE CASE: SECTION 504 PROTECTIONS

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against people with disabilities in “any program or activity receiving Federal financial assistance.” It’s best known in the education context, because many students have “504 plans” to accommodate their disability in public schools.

But Section 504 also applies to other federally funded agencies and programs. The Texas v. Becerra case stems from a lengthy regulation the U.S. Department of Health and Human Services published in May 2024, which took effect last July. It was the “first comprehensive rewrite” since 1977 of the agency’s regulations on discrimination against disabled people.

The Disability Rights Education and Defense Fund held a webinar on February 12 to provide background on the Biden administration rule and the Texas-led lawsuit. Claudia Center, legal director for that organization, explained that Section 504 is known as a “Spending Clause statute” because its anti-discrimination mandate applies to any entity that receives federal funding. She noted that Section 504 is relatively short, which means “all of the detail” about prohibited discrimination comes from the regulations, not the federal law.

Longtime disability advocate Alison Barkoff is currently director of George Washington University’s Hirsh Health Law & Policy Program. During Biden’s presidency, she led the Administration for Community Living, where she and her team worked with staff at the Health and Human Services Department on the new Section 504 regulations.

Disabled people continued to face barriers to basic health care. Among the examples Barkoff cited in the webinar: blind or low-vision patients often could not access the kiosks or websites in doctor’s offices. Cancer detection equipment and procedures, like mammograms and Pap smears, were not always accessible to people who use wheelchairs.

During the COVID-19 pandemic, “this longstanding discrimination” became more visible, Barkoff said. For instance, “Disabled people were denied life-saving treatment like ventilators” under some states’ crisis standards of care. Some people lost community-based services and “were forced into institutions where there were the highest rates of death and COVID infections.” They had trouble obtaining vaccines or information because of inaccessible websites and vaccination sites.

The pandemic “truly created a momentum and urgency for change,” according to Barkoff. She recalled how advocates pushed the Health and Human Services Department to update the Section 504 regulations. Agency staff met with stakeholders before embarking on the long rulemaking process. More than 5,000 stakeholders provided input on the draft rule published in September 2023. The agency collected more than 2,300 pages of evidence, studies, and comments supporting the final regulations, published in May 2024.

Barkoff emphasized that the updated rule “reflects the lived experience across all types of people with disabilities, and all types of discrimination.” Moreover, the Health and Human Services regulations have “a very, very broad reach.” They apply to private doctors’ offices, hospitals, medical facilities that take Medicaid or Medicare, and clinical research. They apply to state programs ranging from Medicaid to disability, aging, and child welfare systems.

Addressing the “insidious discrimination” during the pandemic, Barkoff said, “We thought it was critical to be able to put out a very clear regulation that the lives of disabled people are as valuable as the lives of people without disabilities.” The new Section 504 regulations prohibit discrimination based on stereotypes and bias, such as denying people an organ transplant based on the assumption that they won’t follow post-operative instructions. Similarly, the rule makes clear that “value-assessment measures,” like “quality-adjusted life years,” are illegal disability discrimination.

The Disability Rights Education and Defense Fund created a “Frequently Asked Questions” page, which summarizes how the Biden administration’s Section 504 rule prohibits many kinds of discrimination in medical, health care, and child welfare settings.

THE PRETEXT: A PASSING REFERENCE TO GENDER DYSPHORIA

Along with the rule, the Health and Human Services Department published a preamble. Steven Schwartz, founder and special counsel for the Center for Public Representation, explained during the webinar that the preamble is “a description of what the agency intended to do.” Over hundreds of pages, the preamble summarizes the public comments, how the agency considered that input, and its final thinking behind the rule.

The preamble mentions gender dysphoria in one passage, which alludes to an appellate court decision. The key sentence reads, “The Department agrees that restrictions that prevent, limit, or interfere with otherwise qualified individuals’ access to care due to their gender dysphoria, gender dysphoria diagnosis, or perception of gender dysphoria may violate section 504.”

That language does not redefine all transgender people as disabled. Rather, it suggests that if someone is denied access to health care because they are transgender or perceived to be transgender, that could be a Section 504 violation, depending on the facts of the case.

Although that sentence is not part of the agency’s Section 504 rule, it’s the “central focus” of the Texas-led lawsuit, Schwartz said.

Indeed: when announcing the lawsuit last September, a news release from the Texas Attorney General’s office inaccurately claimed the Biden administration “unilaterally” classified gender dysphoria as a disability in an effort to “force unscientific, unfounded gender ideology onto the public.”

Claudia Center told me in a February 12 interview that because the sentence about gender dysphoria is in the preamble—not the rule—the Trump administration could remove it immediately, without going through the time-consuming process to repeal or revise the rule. She noted that President Donald Trump has already issued executive orders indicating his administration will not abide by any legal protections for transgender people.

If the Republican attorneys general were only seeking to block gender dysphoria from being recognized as a disability, they could drop the Texas v. Becerra lawsuit today.

THE FEDERAL CASE BIRD DIDN’T BRAG ABOUT

I learned about this lawsuit on February 10, four and a half months after the states filed in Texas federal court. A review of the Iowa Attorney General’s website confirmed I hadn’t missed a press release about the case.

That was odd.

Bird has championed various state efforts to codify discrimination against transgender Iowans. She’s typically eager to be quoted on that topic.

Not only that: Bird famously promised in a campaign ad to “give Joe Biden exactly what he deserves.” The Iowa Attorney General’s office hailed many multi-state actions challenging Biden administration regulations in 2024. Press releases touted lawsuits over rules about nursing home staffing, immigration policies, firearms sales, coal plant emissions, air quality, electric vehicles, electric vehicles again, and more.

So why wouldn’t Bird call attention to this case?

Maybe because Texas v. Becerra could blow up anti-discrimination protections Americans have enjoyed for decades.

“COUNT 3: SECTION 504 IS UNCONSTITUTIONAL”

Here’s the full text of the September 2024 filing in the U.S. District Court for the Northern District of Texas. The Disability Rights Education and Defense Fund’s FAQ page summarizes the legal points well.

“The case is sweeping in its scope,” Steven Schwartz said during the webinar. Plaintiffs are not just taking issue with certain parts of the rule, like the reference to gender dysphoria or the costs of providing community-based services for disabled people.

The plaintiffs argue that everything in the Biden administration’s rule is “arbitrary and capricious,” and therefore invalid, because it interferes with the states’ discretion to provide disability services.

The states claim the Health and Human Services Department’s updated rule places unconstitutional restrictions on how they can use federal funds.

In Count 3, the complaint spends several pages laying out the argument that “Section 504 is Unconstitutional” under the Spending Clause of the U.S. Constitution. Yes, seventeen states including Iowa say this about the anti-discrimination law President Richard Nixon signed in 1973: “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.”

“This part of the lawsuit is frightening,” Schwartz said, because if successful, “other anti-discrimination statutes based on race and sex and ethnicity are also unconstitutional for the same reason.” Since provisions in the regulations link Section 504, the Americans with Disabilities Act, and prohibitions on race and sex discrimination, he added, “striking down the rule might imperil the ADA as well.”

Claudia Center concurred with that view, noting during the webinar that “any attack around the Spending Clause” could affect other federal statutes covering race and sex discrimination.

Whereas Biden’s Justice Department was “planning to aggressively defend the rule and the statute,” Schwartz said, the Trump administration is reviewing its position. That has created “a lot of uncertainty” ahead of a February 25 deadline for the parties to issue a status report. The states could dismiss the lawsuit if the Trump administration agreed to eliminate references to gender dysphoria. Or the Trump administration may delay action on the case for months.

I asked Center what would happen if the Justice Department agrees with the plaintiff states that the rule is arbitrary and capricious, and/or that Section 504 is unconstitutional. That wouldn’t automatically nullify the rule or the law. The federal court could allow intervenors to take the place of the administration in defending the case. Intervenors might include disability advocacy organizations, or states that want to keep protecting disabled people from discrimination.

Schwartz said disability organizations around the country are willing to join the case or present “friend of the court” (amicus curiae) briefs if necessary.

One thing’s for sure: Bird is not telling Iowans the truth about what this lawsuit could do to their civil rights.

ROUND ONE: INACCURATE STATEMENTS

The same afternoon I learned about Texas v. Becerra, Bird was scheduled to discuss her office’s work and budget request before the Iowa House Justice Systems Appropriations Subcommittee.

After her appearance, the attorney general took some questions from reporters in the hallway. Here’s the audio clip of my exchange with her:

I asked Bird to comment on the Texas lawsuit seeking to have Section 504 declared unconstitutional. “That’s not true, just so you know,” she said. “That’s not true at all.”

I mentioned that the suit is asking the court to find that Section 504 violates the Spending Clause.

“There’s an urban legend going around on that, and that information is not correct,” Bird insisted. “We can send you the amicus brief, so that you have it.”

I told her I had just read the court filing, and part of the relief sought is to declare that Section 504 violates the Spending Clause and is unconstitutional.

“It’s with regard to gender dysphoria, is what it is. So it’s a very narrow issue, not all of 504,” Bird said.

I followed up: “That’s part of the relief, is to invalidate the rule. But it also says that Section 504 violates the Spending Clause. You dispute that that’s in the filing you signed onto.”

“I just answered your question, so we can get you a copy of the brief if you need it, but it sounds like you already have it,” Bird said. Her staff quickly broke in to say they needed to get to another meeting.

I gave Bird the benefit of the doubt that day, thinking she might not be familiar with Texas v Becerra and consequently might not have understood my questions. After all, Iowa has sued the Biden administration many times. Since she referred to an “amicus brief,” I thought she might be confusing this case with one where Iowa was not a plaintiff but had intervened as a “friend of the court.”

I also considered the possibility that her staff had not adequately researched the case before signing on in September. Maybe they didn’t read the draft as far as page 37, when the attack on Section 504 in its entirety begins. Perhaps they had misinformed their boss, telling Bird the lawsuit was narrowly focused on anti-trans arguments.

I had emailed Alyssa Brouillet, spokesperson for the Attorney General’s office, with some questions about the lawsuit on February 10. Shortly after I got home from the capitol that day, I emailed again, asking her to send over the most recent court documents in this case. No response.

I asked again later, this time copying Solicitor General Eric Wessan, whose name appears on the September 2024 court filing. I specifically wanted to clarify whether Iowa had stepped away from the plaintiffs’ initial position, in order to “advocate a more narrow challenge to the Biden rule.” No response.

I asked Brouillet and Wessan about the case for a third straight day on February 12. No response.

Bird’s spokesperson was sending comments to other media, though—and by now, there was no chance of an honest misunderstanding.

ROUND TWO: PREMEDITATED LIES

On February 11, a group of about fifteen parents, teachers, and grandparents came to the Hoover Building to ask Bird to withdraw from the Texas v Becerra lawsuit. Bird’s staff refused to come downstairs to meet with the group, and did not allow them to come up to speak with personnel. State troopers eventually escorted Amber Gustafson, a parent of a child with 504 accommodations in school, to the front desk of the Attorney General’s office to deliver the letters.

In a video posted to Facebook, Gustafson said their action helped draw attention to the lawsuit and how Bird “is really trying to sidestep this and not communicate clearly exactly what this lawsuit is about.” Gustafson added, “So far the responses that we have gotten from her office have mostly been that, ‘No no no, this doesn’t undo Section 504,’ even though absolutely every lawyer that I have spoken to has said, ‘Yes it 100 percent does.'”

Gustafson sent out a press release on February 10 about the lawsuit and the parents’ plan to visit the Attorney General’s office the following morning.

The group visit generated some media coverage. And while Bird’s staff ignored my repeated inquiries, they did try to shape the narrative in other reporting. Brouillet gave this doozy of a comment to the Des Moines Register’s health care reporter, Michaela Ramm. From the February 12 article:

“The Iowans who were fed lies to show up at our office today in freezing temperatures deserve the truth,” said Alyssa Brouillet, communications director for the Iowa Attorney General’s Office. “And the truth is that no one’s 504 plan is being changed or removed.”

No one who showed up at the office was “fed lies.” They raised valid questions about a lawsuit that threatens their families’ well-being.

The only reason “no one’s 504 plan is being changed or removed” is that the lawsuit is at an early stage. If courts eventually rule in favor of the plaintiffs, Section 504 will be declared unconstitutional, and all of its associated protections against discrimination will disappear.

Ramm’s article mentioned that the lawsuit is seeking “to block enforcement of Section 504 altogether.”

However, the Iowa Attorney General’s Office says the lawsuit is not asking the court to do away with Section 504.

“The Biden-Harris Administration’s transgender mandate violates the 504 law that protects kids with disabilities and jeopardizes school accommodations for kids who need them,” Brouillet said. “The 17 state lawsuit protects the 504 law and makes certain no parent has to worry whether their child will get the support they need in school.”

Center told me during our telephone interview, “If the attorney general thinks that they’re not trying to declare 504 unconstitutional, then I recommend that she read the complaint. And if she doesn’t agree with that course of action, she should withdraw Iowa from this case before February 25.”

ROUND THREE: LIES COMING DIRECTLY FROM BIRD

Just before 4:00 p.m. on February 12, the Attorney General’s office finally announced that Bird had joined this lawsuit in September 2024. The press release reached new heights of dishonesty.

I’m posting it in full but will fact-check line by line. Almost every sentence contains a lie, starting with the title:

Attorney General Bird Challenges Biden-Harris Transgender Mandate that Jeopardizes School Accommodations for Kids

FOR IMMEDIATE RELEASE: Wednesday, February 12, 2025

False. This Biden administration rule came from the Health and Human Services Department. It is not connected to education and would not threaten school accommodations for kids if the plaintiffs were not challenging Section 504 as a whole.

Also false, because the rule contains no “transgender mandate.” A passage about gender dysphoria appears in the preamble to the rule—not the regulation itself.

First sentence:

DES MOINES—In September 2024, Iowa Attorney General Brenna Bird signed onto a 17-state lawsuit challenging a Biden-Harris transgender mandate that threatens school accommodations for kids.

False, for the same reasons.

Second sentence:

The Biden-Harris mandate illegally attempted to include “gender dysphoria” under Section 504, a law that protects school accommodations for kids with disabilities such as ADHD or diabetes.

False. As the Disability Rights Education and Defense Fund explained, “The preamble to the rules is not part of the regulations. The updated regulations themselves do not discuss gender dysphoria.^[7]“

Third and fourth sentences from the attorney general’s office:

When Congress originally passed Section 504, the law excluded “gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.” If left unchecked, the Biden-Harris scheme to push woke, transgender ideologies on kids would have made all of Section 504 unconstitutional and jeopardized school accommodations for kids who need it.

The law enacted in 1973 did say “gender identity disorders” are not disabilities. But again: the Biden administration was not redefining gender dysphoria as a disability. And as mentioned above, the health agency’s rule was not related to education, much less an attempt to “push woke, transgender ideologies on kids.”

It’s also false to claim one reference to gender dysphoria in the preamble “would have made all of Section 504 unconstitutional.” The only people arguing that Section 504 is unconstitutional as a whole—thereby jeopardizing accommodations for kids in schools and for disabled people of all ages in health care settings—are the seventeen plaintiff states, including Iowa. Their legal argument is grounded in the Spending Clause of the U.S. Constitution, not a reference to gender dysphoria.

The states could have challenged only the HHS rule, without arguing that the entire Section 504 law is unconstitutional. That’s not what they are doing.

Fifth sentence from Bird’s official statement:

“The Biden-Harris Administration stopped at nothing to force illegal, transgender ideologies in our schools, even at the cost of critical classroom accommodations for kids,” said Attorney General Bird.

It blows my mind that Bird casts herself as the savior trying to protect “critical classroom accommodations for kids.” She’s suing to make Section 504 unenforceable in every context.

Next four sentences:

“Parents, we hear you loud and clear. No parent should have to worry about whether their kid will get the support they need in school. This lawsuit puts the full force of 17 states behind ending the woke, Biden-Harris mandate that sexualizes kids. We are protecting Section 504 accommodations for students who need it.”

The regulation is about ensuring disabled people have access to health care. There is no mandate that “sexualizes kids.” Bird is just repeating an ugly stereotype about LGBTQ people.

Parents wouldn’t need to worry about their kids getting support in school if seventeen Republican-controlled states hadn’t asked a federal court to declare Section 504 unconstitutional.

I forwarded this press release to Center. Her reaction: “The complaint explicitly requests that Section 504 be declared unconstitutional and that the updated 504 regulations be held unlawful. If that’s not what the Iowa AG wants to happen, then she should direct the lawyers to drop that demand.”

The final paragraphs contain one last bit of misdirection.

The lawsuit is suspended due to the change in Administration. President Trump’s Administration is reviewing the lawsuit. President Trump has already made significant strides to protect kids in schools by signing an executive order to protect girls’ sports.

Iowa joined the Texas-led lawsuit, along with Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah, and West Virginia.

Read the full lawsuit here.

Trump’s discriminatory order about girls’ sports has no relevance to this case. Bird’s staff mentioned it here to reinforce their dishonest frame: namely, that this lawsuit is about transgender accommodations.

The bottom line: Bird and her staff had several days to consider how to answer questions about this case. Instead of explaining why they want to blow up a 50-year-old anti-discrimination law, they lied.

Minutes after I received this official statement, I emailed Brouillet again.

Alyssa, please point me to ANY language in the lawsuit that seeks to “protect” Section 504 accommodations for students.

The complaint argues at length that all of Section 504 is an unconstitutional violation of the Spending Clause.

No response.

I gave Brouillet and Wessan one more chance on February 14 to “point me to any language in the court filing that supports your office’s characterization of the lawsuit.” I also wanted to know, “Is the state of Iowa’s position that Section 504 should be struck down as unconstitutional? And if not, do you intend to withdraw from this lawsuit?”

No response.

WHY TELL AN EASILY DISPROVABLE LIE?

Why would Bird and her staff tell lies that are so easy to disprove?

Unfortunately, conventional journalism standards give public officials incentive to mislead about unpopular positions. Almost no one who reads a newspaper article or sees a TV news report will look up the legal documents. In some cases, even the reporters don’t read the court filings. They might adopt the official framing without noticing the deception.

Even when reporters understand what’s going on, they probably won’t call out lies from a high-ranking official. They and their editors don’t want complaints about “biased” coverage to flood the newsroom.

The likely result is he said/she said framing, as in Ramm’s story for the Register. The headline for the online version reads, “Iowa joins suit over Biden gender dysphoria rule, alarming parents with disabled children.” It’s not a “gender dysphoria rule.” It’s a lengthy rule about illegal discrimination against disabled people in health care settings, with one reference to gender dysphoria in the non-binding preamble.

The url for the Register’s story reads, “Parents say Iowa suit against federal rule could negatively impact children with disabilities.” The news here isn’t what “parents say”—it’s what the state of Iowa is asking the court to do.

Ramm cited parents’ concerns several times in her story. She also acknowledged that the lawsuit is seeking “to block enforcement of Section 504 altogether.” But she went on to present the attorney general’s office position as a reasonable opposing view.

In the suit, the states’ attorneys general ask the court to permanently block enforcement of the Biden Administration’s federal rule change, and to declare it unlawful. But what’s alarming to parents is a section in the lawsuit in which the plaintiffs ask the court to block enforcement of Section 504 altogether.

However, the Iowa Attorney General’s Office says the lawsuit is not asking the court to do away with Section 504.

“The Biden-Harris Administration’s transgender mandate violates the 504 law that protects kids with disabilities and jeopardizes school accommodations for kids who need them,” Brouillet said. “The 17 state lawsuit protects the 504 law and makes certain no parent has to worry whether their child will get the support they need in school.”

Brouillet’s statement is false on several levels. But you wouldn’t guess that from the Register’s coverage. A reader might think these worried parents are overreacting as Bird tries to “protect” their children. If the newspaper doesn’t want to call Brouillet or her boss liars, they could at least write something along the lines of, “Asked to comment, the Iowa Attorney General’s Office mischaracterized the nature of the rule and the lawsuit.”

KCRG-TV’s Keegan Turnbough approached the story in a better way. The third sentence of his report conveyed the stakes: “A lawsuit by 17 states, including Iowa, asks a federal judge to rule Section 504 of the Rehabilitation Act of 1973 unconstitutional and issue permanent injunctive relief, meaning protections under the section would end.” The report gently challenged the official line:

“If left unchecked, the Biden-Harris scheme to push woke, transgender ideologies on kids would have made all of Section 504 unconstitutional and jeopardized school accommodations for kids who need it,” says Iowa Attorney General Brenna Bird in a press release. “We are protecting Section 504 accommodations for students who need it.”

TV9 asked Bird’s office to explain how the lawsuit would preserve Section 504 when it specifically asks for a district court to declare the whole section unconstitutional. Her office reiterated Bird’s statement, saying she wants to protect Section 504, but refused to explain why the lawsuit she joined, specifically asks to declare all of Section 504 unconstitutional.

I’m not sure viewers would guess Bird deliberately misrepresented her position. But within the constraints of conventional journalism, this was a solid effort. It stated the most newsworthy fact (Iowa is seeking to strike down Section 504), rather than presenting that fact as someone’s opinion (“parents say”). It even showed viewers the page from the lawsuit that asks the court to declare Section 504 unconstitutional.

When official dishonesty is this blatant, reporters and editors need to grasp that it’s not “objective,” “balanced,” or “unbiased” to tell the story with a he said/she said frame. That fails to communicate what’s going on, and rewards politicians for working the media refs.