*578 OPINION
ANN CRAWFORD McCLURE, Justice.This is an interlocutory appeal from the trial court’s denial of a plea to the jurisdiction filed by the University of Texas as El Paso (“UTEP”). At issue is the self-care provision of the Family and Medical Leave Act. For the reasons that follow, we affirm.
FACTUAL SUMMARY
Alfredo Herrera was employed by UTEP as a heating, ventilation, and air-conditioning technician from 2002 to 2006. In March 2005, Herrera suffered an on-the-job injury to his elbow and was on medical leave until he returned to work on January 4, 2006. Less than a week later, Herrera re-injured his elbow at work. On January 27, 2007, Herrera’s employment was terminated for failure to cooperate with his supervisor, refusal to follow instructions, failure to adhere to established rules and regulations, and disorderly and disruptive conduct. Herrera brought an employment discrimination suit against UTEP complaining he was terminated in retaliation for taking leave under the self-care leave provision of the Family and Medical Leave Act.1 UTEP filed a plea to the jurisdiction alleging Herrera’s retaliation claim is barred by sovereign immunity. The trial court denied the plea to the jurisdiction and UTEP filed notice of appeal.
SOVEREIGN IMMUNITY
UTEP raises three issues challenging the trial court’s denial of its plea to the jurisdiction. It argues that the State did not voluntarily waive its sovereign immunity either in the Texas Constitution or by statute, and the UTEP Handbook of Operating Procedures cannot waive the State’s sovereign immunity. Further, UTEP asserts that Congress did not validly abrogate state sovereign immunity from suit under the FMLA’s self-care provision, and therefore, the trial court erred by denying the plea to the jurisdiction.
Standard of Review
When a lawsuit is barred by sovereign immunity, the trial court lacks subject matter jurisdiction, and dismissal with prejudice is proper. City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex. App.-Austin 1998, no pet.). A plea to the jurisdiction is a dilatory plea by which a party contests the trial court’s authority to determine the subject matter of the cause of action. City of Saginaw v. Carter, 996 S.W.2d 1, 2 (Tex.App.-Fort Worth 1999, pet. dism’d w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex.1993); City of Saginaw, 996 S.W.2d at 2. Subject matter jurisdiction is a legal question which we review de novo. City of Saginaw, 996 S.W.2d at 2; Texas Department of Health v. Doe, 994 S.W.2d 890, 892 (Tex.App.Austin 1999, pet. dism’d). We consider the allegations in the petition and accept them as true. See City of Saginaw, 996 S.W.2d at 2-3. The plaintiffs jurisdictional pleadings are to be construed liberally in the plaintiffs favor and we look to the pleader’s intent. See Texas Association of Business, 852 S.W.2d at 446. When deciding a plea to the jurisdiction, a court is not *579required to look solely to the pleadings, but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Independent School District v. Blue, 34 S.W.3d 547, 555 (Tex.2000); see County of Cameron v. Broum, 80 S.W.3d 549, 555 (Tex.2002).
Family and Medical Leave Act
The FMLA authorizes qualified employees to take up to 12-weeks of unpaid leave from their jobs during any 12-month period for one or more of the following reasons:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.
29 U.S.C.A. § 2612(a)(1) (West 1999). Subsection (C) is often referred to as the family-care provision while Subsection (D) is referred to as the self-care provision. The FMLA makes it unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under the FMLA. 29 U.S.C.A. § 2615(a)(1). It is unlawful for any employer to discharge or otherwise discriminate against any individual opposing any practice made unlawful by the FMLA. 29 U.S.C.A. § 2615(a)(2). It also is unlawful for any employer to discharge or in any other manner discriminate against any individual because the individual has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to the FMLA. 29 U.S.C.A. § 2615(b).
Sovereign Immunity
The Eleventh Amendment to the U.S. Constitution provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const.Amend. XI. The Eleventh Amendment does not create or grant immunity but rather recognizes that states as separate sovereigns can limit, with few exceptions, their susceptibility to suit. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex.2004), citing Alden v. Maine, 527 U.S. 706, 728-29, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Federal courts have no jurisdiction over federal or state law claims against a state or state agency unless Eleventh Amendment immunity has been expressly waived by the state or abrogated by Congress pursuant to proper constitutional authority. Hoff, 153 S.W.3d at 48. Further, Eleventh Amendment immunity protects nonconsenting states from being sued in their own courts for federal law claims. Id.
Abrogation of Sovereign Immunity by Congress
Congress may abrogate the States’ sovereign immunity if it manifests *580its intention to abrogate in the language of the statute and if it acts pursuant to a valid exercise of its power under Section 5 of the Fourteenth Amendment. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 726, 123 S.Ct. 1972, 1976, 155 L.Ed.2d 953 (2003). The FMLA enables employees to seek damages against any employer, including a public agency, in any federal or state court of competent jurisdiction. 29 U.S.C.A. § 2617(a)(2). The FMLA defines public agency to include both the government of a state or political subdivision and any agency of a state or a political subdivision of a state. 29 U.S.C.A. § 203(x)(West Supp.2008); 29 U.S.C.A. § 2611(4)(A)(iii). Based on this language in the statute, the Supreme Court found in Hibbs that Congress made unmistakably clear its intention to abrogate the States’ sovereign immunity. Hibbs, 538 U.S. at 726, 123 S.Ct. at 1977.
In addressing whether Congress acted within its constitutional authority when it sought to abrogate the State’s immunity for purposes of the FMLA’s family-leave provision found in § 2612(a)(1)(C), the Supreme Court noted that two provisions of the Fourteenth Amendment are relevant to the inquiry: Section 5 grants Congress the power to enforce the substantive guarantees of § 1, which includes equal protection of the laws, by enacting appropriate legislation. Hibbs, 538 U.S. at 726-27, 123 S.Ct. at 1977. Congress may, in the exercise of its § 5 power, do more than simply proscribe unconstitutional conduct. Id., 538 U.S. at 727, 123 S.Ct. at 1977. Its § 5 power to enforce the substantive guarantees of § 1 of the Fourteenth Amendment includes the authority to both remedy and deter violation of guaranteed rights by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden. Id. In other words, Congress may enact prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct. Id., 538 U.S. at 727-28, 123 S.Ct. at 1977. Section 5 legislation reaching beyond the scope of § l’s actual guarantees must be an appropriate remedy for identified constitutional violations, not an attempt to substantively redefine the State’s legal obligations. Hibbs, 538 U.S. at 728, 123 S.Ct. at 1977. The legislation must exhibit congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Id., 538 U.S. at 728, 123 S.Ct. at 1977-78.
UTEP asserts that in recent years the Supreme Court has used the proportionality and congruence test to invalidate several congressional attempts to exercise its § 5 power. We understand UTEP to argue that it is extremely difficult for Congress to successfully abrogate state sovereign immunity. In support of this argument, it cites City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999), Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), and Board of Trustees of University of Alabama v. Garnett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Unlike the instant case, none of these cases involved a gender-based classification or other classification subject to a heightened level of scrutiny. This distinction is significant because it impacts our review.
The FMLA aims to protect the right to be free from gender-based discrimination in the workplace. Hibbs, 538 U.S. at 728, 123 S.Ct. at 1978. State gen*581der discrimination triggers a heightened level of scrutiny. Id., 538 U.S. at 728 and 736, 123 S.Ct. at 1978 and 1982. To survive such heightened scrutiny, the gender-based classification must serve important governmental objectives and the discriminatory means employed must be substantially related to the achievement of those objectives. Id. Because the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than the rational basis test, it is easier for Congress to show a pattern of state constitutional violations. Id., 538 U.S. at 736,123 S.Ct. at 1982.
In Hibbs, the Supreme Court examined whether Congress had evidence of a pattern of constitutional violations on the part of the States with regard to gender-based discrimination in the workplace. Id., 538 U.S. at 729, 123 S.Ct. at 1978. It found that Congress had before it evidence that, despite the passage of Title VII of the Civil Rights Act of 19642, gender discrimination did not cease and women still faced pervasive discrimination in the job market. Id., 538 U.S. at 729-30, 123 S.Ct. at 1978-79. Further, there was evidence that States continued to rely on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits. Id., 538 U.S. at 730, 123 S.Ct. at 1979. These stereotypes included beliefs that women’s family duties trumped those of the workplace, caring for family members is women’s work, and men do not have the same domestic responsibilities as women. Id., 538 U.S. at 731 n. 5, 123 S.Ct. at 1979 n. 5. The impact of these stereotypes on leave administration by employers forced women to continue to assume the role of primarily family caregiver and fostered stereotypical views about women’s commitment to work and their value as employees. Id., 538 U.S. at 736, 123 S.Ct. at 1982. This in turn led to subtle discrimination against women in the workplace. Id. Thus, the Supreme Court found that the States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic § 5 legislation. Id., 538 U.S. at 735, 123 S.Ct. at 1981. Since Hibbs was decided, four federal courts of appeals have found Congress did not validly abrogate immunity for claims based on the self-care provision. Nelson v. University of Texas at Dallas, 535 F.3d 318, 321 (5th Cir.2008); Toeller v. Wisconsin Department of Corrections, 461 F.3d 871, 879 (7th Cir.2006); Touvell v. Ohio Department of Mental Retardation and Developmental Disabilities, 422 F.3d 392, 405 (6th Cir.2005); Brockman v. Wyoming Department of Family Services, 342 F.3d 1159, 1165 (10th Cir.2003).3 Relying on the holdings in these cases, UTEP contends that when Congress enacted the FMLA, it had no evidence before it that employers engaged in a pattern of discrimination in providing leave for personal medical conditions, and without such findings, the self-care-leave provision of the FMLA is an invalid abrogation of state sovereign immunity. We disagree with this argument for two reasons.
First, we are not persuaded that in order to uphold the self-care provision it is necessary to have a congressional record replete with evidence showing a pattern of *582gender-based discrimination specifically-related to leave for personal medical conditions. The Supreme Court has already found in Hibbs that Congress had evidence before it in 1993 that nearly thirty years after the passage of Title VII, women still face pervasive discrimination in the job market and the States continued to rely on invalid gender stereotypes in the administration of leave benefits. Hibbs, 538 U.S. at 729-30, 123 S.Ct. at 1978-79. These invalid gender stereotypes include a belief that a woman’s job is secondary to her role in the home. See id., 538 U.S. at 729, 123 S.Ct. at 1978. The self-care provision is directed at that stereotype, but it is also directed at a related invalid stereotype: that women of child-bearing age take more leave than other employees. In light of Hibbs, the only question is whether the self-care provision exhibits congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. We conclude that it does.
Second, even if it can be said that Congress is required to compile a legislative record showing the existence of past and current gender-based discrimination to justify the enactment of the self-care provision of the FMLA, we conclude that the legislative history of the FMLA and the congressional record provides sufficient evidence and relevant congressional findings. We consider first the historical context in which the FMLA was enacted and its legislative history. Title VII of the Civil Rights Act of 1964 was intended to remedy discrimination in the workplace based on gender, among other things. Kazmier v. Widmann, 225 F.3d 519, 546 (5th Cir. 2000)(J. Dennis, dissenting opinion). In 1976, the Supreme Court held that Title VII did not protect against discrimination based on pregnancy under the theory that it is not discrimination based on sex, but rather it is discrimination among women based on a medical condition. General Electric Company v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). In response, Congress enacted the Pregnancy Discrimination Act and effectively overruled Gilbert by amending Title VIPs definition of discrimination on the basis of sex to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. 42 U.S.C.A. § 2000e(k)(West 2003); Kazmier, 225 F.3d at 546, citing Newport News Shipbuilding and Dry Dock Company v. E.E.O.C., 462 U.S. 669, 676, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983)(recognizing that the Pregnancy Discrimination Act overturned Gilbert and rejected the test of discrimination employed in that case). Nevertheless, the Pregnancy Discrimination Act did not affirmatively grant pregnant workers leave time or the right to return to then* job but only required an employer to provide these benefits if the employer provided them to other temporarily disabled workers. Kazmier, 225 F.3d at 546.
In 1985, Congress began considering the issue of family and medical leave. Id. at 547, citing The Family and Medical Leave Act of 1993: A Survey of the Act’s History, Purposes, Provisions and Social Ramifications, 44 DraKE L.Rev. 51 (1995). Representative Pat Schroeder introduced the Parental and Disability Leave Act of 1985 (PDLA) in the House of Representatives. Kazmier, 225 F.3d at 547. It provided for eighteen weeks of unpaid leave for both mothers and fathers of newborn or adopted children and twenty-six weeks of unpaid leave for non-work related disabilities. Id. The PDLA was not considered by the House but it was resubmitted in 1986 by Representative William Clay and renamed the Parental and Medical Leave Act of 1986 (PMLA). Two subcommittees *583and a full committee4 conducted hearings to determine the extent of discrimination in the workplace against men and in favor of women in the workplace with regard to taking leave to care for sick family members. Id. The PMLA was not considered by the full House. Id.
In 1989, Representative Clay reintroduced the Family and Medical Leave Act in the House of Representatives. Kazmier, 225 F.3d at 547. It passed both the House and the Senate, but President Bush vetoed it in 1990. Id. In 1991, Senator Christopher Dodd introduced the Family and Medical Leave Act of 1991, which was identical to the bill vetoed by President Bush in 1990. Id. Congress amended the bill to change the amount of mandatory leave per year to twelve weeks. Id. The Act was passed by both the Senate and the House, but President Bush vetoed it in September of 1992. Id.
In 1993, Representative William Ford introduced the Family and Medical Leave Act to the House. Kazmier, 225 F.3d at 547. The Act’s leave provisions were substantially similar to those of the amended 1991 version of the FMLA. Id. In considering enactment of the 1993 FMLA. the House of Representatives considered both new evidence of gender-based discrimination with regard to the administration of leave benefits, but it also reviewed the testimony given at hearings with respect to the “substantially similar” bills previously considered. Kazmier, 225 F.3d at 547, citing H.R.Rep. No. 103-8(1). For example, the House Report indicates that the 1993 FMLA had its roots in the 1985 proposed legislation and it made multiple references to the committee hearings held in 1986 in connection with the 1986 PMLA. Id. at 547-48, citing H.R.Rep. No. 103-8(1). Accordingly, in determining whether Congress had before it adequate evidence of gender-based discrimination when it enacted the self-care provision, we will not restrict our review to the 1993 legislative record but will also consider the evidence before Congress during these earlier hearings.
Before the adoption of the Pregnancy Discrimination Act of 1978, there was no federally required parity in the allowance for maternity and sick leave. Laro v. New Hampshire, 259 F.3d 1, 20 (5th Cir. 2001)(J. Lipez, dissenting opinion). The unavailability of maternity leave favored male employees over those female employees who wanted to bear children. Id. This circumstance prevented many women from entering the workforce or advancing if they found their way into the workplace. Id. To rectify this inequity, the Pregnancy Discrimination Act required employers who provided sick leave for other conditions to offer the same level of benefits for maternity leave. Id.; 42 U.S.C.A. § 2000e(k). But the Pregnancy Discrimination Act did not address the gender-based stereotype that women of childbearing age would take more leave than other employees. Id. In fact, the PDA had an unintended negative impact on women’s opportunities in the workplace because “employers might find it cost-effective to discriminate against married women of child-bearing age, since these women would end up costing a firm more than they contribute to its worth.” Id. at 20, quoting S.Rep. No. 102-68, at 73 (1991)(testimony of economist Deborah Walker).
It was in this context that Congress found it necessary to enact the FMLA and include the self-care provision. Laro, 259 *584F.3d at 21. Congress found that employment standards which apply to one gender only have serious potential for encouraging employers to discriminate against employees and applicants for employment who are of that gender. 29 U.S.C.A. § 2601(a)(6). Significantly, Congress did not limit this finding to the family care provision. The stated purposes of the FMLA are to minimize the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis and to promote the goal of equal employment opportunity for women and men. 29 U.S.C.A. §§ 2601(b)(4) & (5). Congress also had evidence before it that, even where state laws and policies were not facially discriminatory, they were applied in discriminatory ways. Hibbs, 538 U.S. at 732, 123 S.Ct. at 1980. For example, Congress heard testimony that the lack of uniform parental and medical leave policies in the work place has created an environment where sex discrimination is rampant. Id.; The Parental and Medical Leave Act of 1987, Hearings Before the Subcommittee of the Senate Committee on Labor and Human Resources, Pari 2, 100th Cong. 536 (1987)(comments of Peggy Montes, Mayor’s Commission on Women’s Affairs, City of Chicago).
The self-care provision was not tacked onto the FMLA as some kind of benefit entitlement completely unrelated to the goal of promoting equal employment opportunity for women and men. Preceding enactment of the FMLA, the Senate Committee on Labor and Human Resources reported:
Another significant benefit of the temporary medical leave provided by this legislation is the form of protection it offers women workers who bear children. Because the bill treats all employees who are temporarily unable to work due to serious health conditions in the same fashion, it does not create the risk of discrimination against pregnant women posed by legislation which provides job protection only for pregnancy-related disability. Legislation solely protecting pregnant women gives employers an economic incentive to discriminate against women in hiring policies; legislation helping all workers equally does not have this effect.
S.Rep. No. 102-68, at 35 (1991). The House Committee on Education and Labor made a similar finding:
The FMLA addresses the basic leave needs of all employees. It covers not only women of childbearing age, but all employees, young and old, male and female, who suffer from a serious health condition, or who have a family member with such a condition. A law providing special protection to women or any defined group, in addition to be inequitable, runs the risk of causing discriminatory treatment. [This legislation], by addressing the needs of all workers, avoids such a risk.
H.R.Rep. No. 103-8, pt. 1, at 29 (1993).
Thus, Congress intentionally included the self-care provision in the FMLA to counter the stereotype that women take more advantage of leave policies than men and to provide women with protection from gender discrimination in the workplace which would have resulted from legislation providing special protection only for pregnant women. We conclude that Congress had before it sufficient evidence of gender-based discrimination in the administration of leave benefits to warrant the enactment of prophylactic § 5 legislation. See Hibbs, 538 U.S. at 735, 123 S.Ct. at 1981.
*585Further, we conclude that Congress’s chosen remedy, the self-care leave provision, is congruent and proportional to the targeted violation. See Hibbs, 538 U.S. at 735, 123 S.Ct. at 1981. The failure of Title VII and the Pregnancy Discrimination Act to address the problem justifies prophylactic measures in response. Id. By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that pregnancy-related sick leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. Id. By setting a minimum standard of self-care leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that women of child-bearing age are absent more than other employees, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes. See Hibbs, 538 U.S. at 737, 123 S.Ct. at 1983. For these reasons, we conclude that § 2612(a)(1)(D) is congruent and proportional to its remedial object, and can be understood as responsive to, or designed to prevent, unconstitutional behavior. We therefore decline to follow the reasoning in Nelson v. University of Texas at Dallas, Toeller v. Wisconsin Department of Corrections, Touvell v. Ohio Department of Mental Retardation and Developmental Disabilities, and Brockman v. Wyoming Department of Family Services. Because the trial court did not err by denying UTEP’s plea to the jurisdiction on this ground, we overrule Issue One. Having found that UTEP’s sovereign immunity has been validly abrogated by the enactment of FMLA, it is unnecessary to address the remaining arguments raised by UTEP. The judgment of the trial court is affirmed.
CARR J., dissenting.
. Herrera’s suit also includes an allegation that he was terminated for exercising his First Amendment right to complain about being required to work unsafely and use unsafe equipment. This appeal pertains only to the FMLA claim.
. 42 U.S.C.A. § 2000e et seq.
. In an unpublished opinion, the Fourth Circuit summarily held, based on Hibbs, that Congress validly abrogated the States' immunity for FMLA claims based on the self-care provision. Montgomery v. Maryland, 72 Fed. Appx. 17, 19 (4th Cir.2003)(unpublished). Prior to Hibbs, the Fourth Circuit had reached the opposite conclusion in Lizzi v. Alexander, 255 F.3d 128, 135-36 (4th Cir. 2001).
. The Subcommittee on Compensation and Employee Benefits and the Committee on Post Office and Civil Service conducted joint hearings on the PMLA, as did the Subcommittee on Labor Management Standards. Kaz-mier, 225 F.3d at 547.