Gender dysphoria: Is it an ADA-protected disability?
As our readers know, discrimination against transgender individuals is often treated as sex discrimination under Title VII, as a form of unlawful "sex stereotyping."
But is it also a "disability" within the meaning of the Americans with Disabilities Act when an individual identifies with a gender other than his or her biological one?
Transgender individuals don't usually invoke the ADA, presumably because they don't consider themselves to be "disabled." But more importantly from a legal standpoint, the ADA specifically excludes gender identity disorder as a "disability" within the meaning of the law.
Section 12211 of the ADA contains a number of exclusions, including homosexuality and bisexuality (on the ground that they are not "impairments" at all).
"Transsexualism" and "gender identity disorders not resulting from physical impairments" seem to be 1990s-era terms for the state of being what we call today "transgender." And based on the other conditions that "transsexualism" and "gender identity disorders" are grouped with, it appears that in 1990 Congress considered these to be anti-social behaviors like peeping, child molestation, compulsive stealing, and compulsively setting things on fire.
Be that as it may, based on the plain language of Section 12211, I would have believed that an individual with a gender identity disorder not resulting from a physical condition (what we now call "gender dysphoria") was excluded from ADA protection.
But in Blatt v. Cabela's, Inc., a federal judge in Pennsylvania found that the plaintiff's gender dysphoria could be an ADA-protected condition, despite the exclusion in Section 12211.
Ms. Blatt had argued that excluding gender dysphoria from ADA protection violated the Equal Protection Clause of the Fourteenth Amendment. (I'm not sure she's wrong, in light of recent Supreme Court decisions.) But the judge apparently didn't want to go there, so he found, instead, that gender dysphoria that caused "clinically significant stress and other impairments that may be disabling" could be.
Now, let's analogize this back to the transgender individual. Clinical depression caused by, let's say, discrimination against an individual because she was transgender would clearly be an ADA-protected condition. But her transgender status in itself would not be because the statute says it isn't.
In other words, it seems to me that, if we follow the judge's reasoning, we are reading Congress's exclusion right out of the statute. And we can't do that unless the provision is unconstitutional, as the plaintiff has argued but no court has ruled.
In any event, employers should be aware that at least one federal court says that gender dysphoria is an ADA-protected disability that may require reasonable accommodation. It will be interesting to see whether any other courts follow, or whether the U.S. Court of Appeals for the Third Circuit will agree.
Thanks very much to my blogging friend, Bill Goren of the blog Understanding the ADA, who alerted me to this decision!
Image Credits: From flickr, Creative Commons license. Caitlyn Jenner on magazine rack by Mike Mozart; reading glasses by faunggs photos.