For the first time last week, a federal judge found that being transgender qualifies as a disability under the Americans With Disabilities Act (ADA). This might seem like the sort of news that would send Tony Perkins and Jerry Falwell Jr. into paroxysms of joy, a victory in the far right’s push to stigmatize lesbian, gay, bisexual, and transgender people. Indeed, the far right usually favors pathologizing transgender people. Not so this time.
When senators excluded gender identity disorder, or GID, from the ADA in 1989, they did so as a moral statement. (NB: When the Senate failed to redress the issue in 2008, it constituted a moral failing.) Gender identity disorder appears on a list of exclusions from disability coverage that includes pedophilia and exhibitionism, nestled between voyeurism and “other sexual behavior disorders.” The same provision excludes “compulsive gambling, kleptomania, or pyromania” as well as “psychoactive substance use disorders resulting from current illegal use of drugs.”
The woman who launched the new challenge to the ADA’s exclusion, Kate Lynn Blatt, was initially thrilled to land the job that sparked the litigation. It was the first time she had interviewed for a job as an openly transgender person. But after she began working at Cabela’s, a sporting and outdoor goods store, in 2006, Blatt was allegedly subjected to degrading and discriminatory comments about her gender identity by other employees. “He/she,” “ladyboy,” and “sinner” were common, her complaint reports, as were questions about her genitalia. Management denied her a name tag bearing her correct name and refused to allow her to use the women’s restroom. Because of her response to workplace discrimination and her requests for accommodation, she says, she was fired.
Blatt is now the first transgender person to sue an employer for discrimination under the ADA. Citing a 2005 diagnosis of gender dysphoria, she alleges Cabela’s failed to accommodate her disability and retaliated against her for seeking accommodation.
Gender dysphoria constitutes a disability under the ADA, Blatt argued, because it substantially limits one or more of her major life activities, such as social interactions, reproduction, and occupational functions. In the alternative, her complaint asserts, the ADA’s exclusion of gender identity disorder is unconstitutional as a matter of equal protection. Blatt’s constitutional argument asked the court to weigh in one of the biggest open questions in civil rights law: whether sexual orientation and gender identity are, like race, presumptively impermissible bases for distinctions in law.
This ruling creates momentum for a new avenue of litigation for transgender people to challenge discrimination.
Cabela’s promptly tried to get Blatt’s ADA claim thrown out, but Blatt fought back. Leading LGBT rights groups submitted a brief supporting her—signaling, perhaps, growing consensus on an issue that has historically divided LGBT advocates. The Obama administration chimed in to point out that science suggests a hormonal and genetic component to gender identity, and the ADA only excludes “gender identity disorder not resulting from a physical impairment.”
Judge Joseph F. Leeson Jr., of the Eastern District of Pennsylvania, rejected Cabela’s motion to dismiss in a subtly spectacular ruling. Surely, he wrote, the ADA’s exclusion of “gender identity disorder” can’t have been meant to apply to gender dysphoria characterized by clinically significant stress and disabling impairments. As a matter of basic statutory interpretation—the judge’s version of common sense—such a condition doesn’t belong on a list that is otherwise composed of non-disabling conditions and disabling conditions associated with harmful conduct. If gender identity disorder doesn’t belong in the latter category, Leeson reasoned, it must “refer to simply the condition of identifying with a different gender” and not to “disabling conditions that persons who identify with a different gender may have.”
The implications of Leeson’s interpretation are tremendous. This ruling creates momentum for a new avenue of litigation for transgender people to challenge discrimination. Leeson’s language also reflects a trend most evident elsewhere in cases challenging discrimination against LGBT people as sex discrimination: Judges getting woke.
Although Congress may not have intended the prohibition against sex discrimination to include sexual orientation or gender identity, noted the Seventh Circuit this April, that’s “neither here nor there” when it comes to what that provision means today. In his concurrence to the decision, Judge Richard Posner noted the trajectory of gay visibility and its current widespread acceptance “by a large swathe of the American population as normal.”
“[I]t has taken our courts and our society a considerable while to realize that sexual harassment … is a form of sex discrimination,” Posner observed, and “[i]t has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination.” Finally, he acknowledged, “it has taken still longer … to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.” Leeson has opened a new frontier, bringing a new understanding of gender identity to law and creating a path forward to secure protections for transgender people.
