A federal court in Pennsylvania opened another avenue this month for protecting transgender rights in the workplace by ruling an employment discrimination lawsuit can move forward under the Americans with Disabilities Act (ADA) on the basis that gender dysphoria should be a covered condition under the statute. The ruling is not just the first of its kind for transgender workers—it is an important step in rolling back LGBTQ bias enshrined in the ADA.
In 2005, Kate Lynn Blatt was diagnosed with gender dysphoria. According to the allegations in her complaint, shortly after her diagnosis, she interviewed for a job, and was ultimately hired, by Cabela’s, an outdoor sports retail chain. During the time of her job interview and when she was hired, Blatt was living openly as a trans woman.
According to the allegations in her complaint, in 2006, Blatt began experiencing harassment in the workplace related to her gender identity. Blatt alleges that other employees called her “he/she” and “ladyboy”; some, she says, would also ask Blatt questions about her genitalia. Blatt claims Cabela’s management refused to give her a name tag with her correct name and refused to allow her to use the women’s restroom. When Blatt complained about the alleged harassment, she says, Cabela’s fired her.
Blatt sued in 2007, claiming Cabela’s harassment and retaliation violated both Title VII of the Civil Rights Act—which forbids discrimination in the workplace—and the ADA.
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The ADA was originally passed with a broad remedial purpose of better integrating people with disabilities fully into the workplace and other areas of civic life, and to confront inequities caused by barriers, both structural and societal, for people with disabilities. To be covered under the ADA, a person must have a physical or mental impairment that “substantially limits one or more major life activities.” In her lawsuit, Blatt alleges her gender dysphoria diagnosis fits within the ADA’s definition of a disability because it limits “interacting with others, reproducing, and social and occupational functioning.”
In contrast to the ADA’s broad definition of disability, the statute lists some conditions excluded from coverage. Those excluded conditions list gender identity disorders alongside other conditions, such pedophilia, kleptomania, and pyromania, to name a few. In response to Blatt’s lawsuit, Cabela’s filed a motion to dismiss Blatt’s ADA claim, arguing the statute’s exclusion for gender identity disorders barred it. Blatt argues, meanwhile, that the gender identity disorder exclusion is unconstitutional.
“When the ADA was passed there was this effort, by conservative senators mostly, to de-legitimize the ADA. So they put forward a series of amendments with potential exclusions, saying the ADA wouldn’t cover those conditions,” explained University of Michigan law professor and disability rights expert Samuel Bagenstos in an interview with Rewire. “Most of those amendments failed. But there were a series of amendments, particularly focused on gay and lesbian and transgender people, as well as things like kleptomania and a series of other conditions like that, that are explicitly excluded.”
The exclusion of LGBTQ people, particularly alongside those with so-called deviant disorders such as kleptomania, said Bagenstos, is “purely about stigma toward those conditions. There’s not much of an argument other than that.”
Chase Strangio, staff attorney with the American Civil Liberties Union’s LGBT & HIV Project, agreed. “These exclusions are grounded in bias 100 percent, and they are based in a fear of transness and wanting to cut trans people out of our legal structures,” he said in an interview with Rewire.
Given that the ADA specifically excludes gender-identity disorders from its list of covered conditions, Cabela’s would appear to have a clear path to dismissing Blatt’s ADA claim. But instead the court here relied on a rule of legal interpretation known as the constitutional avoidance doctrine to find that Blatt’s gender dysphoria diagnosis should be a covered condition, and her claim under the ADA should proceed.
According to the doctrine of constitutional avoidance, when courts are faced with interpreting a statute, judges must first try to resolve the claims based on the language of the statute itself rather than proceeding directly to the question, assuming the plaintiff has raised it, as to whether the challenged statute is constitutional. That’s what happened here. Specifically, the court found that the ADA’s statutory exclusion for gender identity disorders can be “read narrowly to refer to only the condition of identifying with a different gender.” This, the court said, would be excluded from ADA protection. By contrast, it noted, the exclusion doesn’t factor in a “condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”
This is a thoughtful and important distinction by the court. First, the opinion acknowledges directly that being transgender is not in and of itself a medical condition or a pathology. From there, the court then recognized that gender dysphoria is a very real medical condition that transgender people experience as a result of identifying with a gender different than the one designated at birth, and that condition can substantially limit major life activities as a result of anxiety, depression, and conditions related to the gap between a transgender person’s identity and being able to live truthfully. This distinction allowed the court to avoid Blatt’s challenge to the exclusion directly, while simultaneously ruling employment discrimination that is related to gender dysphoria violates the ADA.
“If the term gender identity disorders were understood, as Cabela’s suggests, to encompass disabling conditions such as Blatt’s gender dysphoria, then the term would occupy an anomalous place in the statute, as it would exclude from the ADA conditions that are actually disabling but that are not associated with harmful or illegal conduct,” the court noted.
Still, the idea of a court discussing Blatt’s transgender identity as a disability is a thorny one within the LGBTQ and disability communities, given the stigma both have traditionally faced and the history of cultural pathologization of queerness.
“Within the trans movement there has been a whole range of views about embracing a disability framework or rejecting a disability framework,” Strangio said. “I fall strongly in the side of embracing for a lot of reasons. One is that I don’t believe in re-enforcing the stigma around disability. I don’t think there’s anything wrong with having a disability and I don’t feel self-conscious about someone referring to my experience with gender dysphoria as disabling, or of me as having a disability, as someone who struggled with so many mental health conditions in my life. This is part of the way we navigate the world.
“There is a very complex set of systems that can cause someone to experience a disability, and depending on how we describe disability, we could reduce the stigma around it if we recognize that there can be a set of experiences that set people up for an exclusion from society and a society that is unwilling to navigate difference of which our bodies have capabilities and a variety of factors,” Strangio continued.
“I think there’s a reason to be critical of how our identities are pathologized. I mean Blackness has been pathologized. Gayness has been pathologized. Transness has been pathologized. Mental illness has been pathologized …. The tools we need to survive through medical systems … are invested in profit and not survival. So that is a problem. But that is a problem with our entire structure,” Strangio said.
“The whole message of the ADA and the whole point of the ADA is to say there is nothing wrong with having a disability,” said Bagenstos. “A disability is just a failure of a match between the way society is organized and the way your body or your mind works. The whole point of the ADA is to say that mismatch shouldn’t in any way make people less than fully equal citizens.”
Bagenstos continued: “If you kind of take the ADA in the way it is intended, there ought not be a stigmatized way of including transgender status.”
The court’s finding that gender dysphoria is covered under the ADA is significant for another reason as well. Other civil rights statutes regarding workplace discrimination, like Title VII, are remedial in nature and address issues via litigation or agency action. The ADA, meanwhile, has a provision that mandates employers accommodate those employees with disabilities before an employee takes legal steps, so long as it will not unduly burden employers’ business practices.
“The ADA explicitly has an accommodation requirement and so if there is some change of some policy that is necessary to accommodate someone with a disability, the employer has to do it if it is reasonable,” Bagenstos explained. “And so if gender dysphoria or some other aspect of transgender status can fit into disability, then that makes things in some ways easier [to change workplace culture and policies] than proceeding under sex discrimination laws,” said Bagenstos.
Bagenstos noted that the remedies under Title VII that have been achieved, specifically for trans plaintiffs, are similar in nature to the accommodations the ADA automatically requires.
“The thing that makes it harder” for plaintiffs, Bagenstos said, “is the explicit exclusion in the [ADA] statute.”
And because the opinion did not ultimately strike the gender identity exclusion it remains, for now, part of the ADA. The Trump administration’s open hostility to the transgender community as well as Congress’ intent to gut the ADA suggests it will be up to the courts in the immediate future to address the exclusion.
The opinion is also a preliminary one, and answers just the question of whether or not Blatt can proceed with her claim under the statute. She still has to prove her claims that Cabela’s discriminated against her.
“This is an incredibly important ruling and it’s important for a ton of reasons,” said Strangio. “It chips away at this legacy of discrimination in federal law targeting trans people. It starts to invite a conversation about how we have more robust protections in the workplace and other contexts where even full protections under Title VII or Title IX may not give us as much just because of the equality framework of those statutory schemes. It’s exciting when we have new cases opening the door, even if it doesn’t change [the law] overnight.”