First, a housekeeping matter. I will be away next week, and so the next blog you will see after this week, unless I somehow blog later in the week, will be two weeks from today. Recently, the constitutionality of the transvestism exclusion in the ADA has been in the news.

True or False:

1. If a person has a disability and is a transvestite, transgender, or a person with a gender disorder not resulting from physical impairments, the ADA can’t be used regardless of what the disability is.

2. Proving that the transvestism, transsexualism, gender identity disorder, etc. exclusion is unconstitutional will be extraordinarily difficult if not virtually impossible.

Answers: The answers are my own opinion based on the law as it stands currently and no personal opinion is meant.

1. False

2. True

Reason for Answers:

1. 42 U.S.C. § 12211(b) specifically has an exclusion in it for protection under the ADA. More specifically, it excludes from protection under the ADA, “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairment, other sexual disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance abuse use disorders resulting from current illegal use of drugs. 29 C.F.R. 1630.3(d) is identical. 42 U.S.C. § 12211(a) and 29 C.F.R. 1630.3(e) also state that homosexuality and bisexuality are not disabilities as they are not impairments. This is not the same thing as saying that a person who has one of these conditions but also has another condition that would be considered a disability under the ADA as amended, would not be protected by the ADA because of their status in one of these categories. The statute clearly refers to these particular conditions as not being disabilities; it isn’t talking about removing people from coverage based upon their status regardless of the disabilities.

2. Presumably, the challenge to the exclusion is on equal protection grounds. That means first determining what equal protection class a person falls into. In this particular situation, it is hard to believe that the list of conditions mentioned in paragraph 1 above would fall into any class other than the lowest equal protection class, rational basis. This is especially so since persons with disabilities who are covered by the statute are with respect to employment, in the rational basis class, and with respect to things outside of employment, it is a case-by-case situation. Assuming that the conditions in paragraph 1 above would fall into the rational basis class, then Congress would only need a rational basis for coming up with the exclusions that it did. That is a very low standard to meet. Accordingly, getting a judge to find a constitutional violation for the exclusions of these conditions from the ADA will probably be extraordinarily difficult.

Again, none of this represents a personal opinion of mine. Rather, I am just analyzing the law as it currently exists. Also, we don’t know the actual facts of this particular case nor do we know how things will shake out during discovery. For example, perhaps status-based discrimination is going on. That is, maybe the employer is saying that it doesn’t matter what the person’s disability is, they do not have to do anything because the plaintiff falls into one of these categories. If that is what is going on, the above analysis might go differently.