The big news from last week was the decision from the Eastern District of Pennsylvania holding that gender dysphoria is a protected disability under the ADA. The opinion can be found here. Also, this blog entry specifically references a blog published elsewhere by Christine Duffy, Esq., whom I have known for over 20 years. She is a leading, if not the leading, commentator on the issue of gender dysphoria and the ADA and has written a treatise on the subject. She has also followed gender dysphoria and ADA litigation closely. Christine is the Senior Staff Attorney at Pro Bono Partnership serving Connecticut, New Jersey, and New York. She also has helped set up other pro bono partnership systems in other cities. Prior to that she was the VP of Compliance and Assistant General Counsel/Chief Compliance Officer at Veolia Water North America and before that a partner at what is now known as McElroy, Deutsch, Mulvaney and Carpenter. The guest blog entry she wrote for WorkPlace Prof Law blog on this case can be found here. You definitely want to read that entry to fully understand the my thoughts section of this blog entry.

Turning to the blog entry itself, it is divided into the categories of: facts; court’s reasoning; and my thoughts. The reader is free to read any or all of the sections.

I

Facts

The facts are pretty straightforward. Plaintiff has gender dysphoria. In her complaint she alleged that she continually reported to her superior the need for accommodations and was subject to degrading discriminatory comments on the basis of her gender dysphoria. She requested a female name tag and female uniform and use of the female restroom as accommodations for her gender dysphoria. As a result of making those requests, she was subjected to a pattern of antagonism and then terminated. She brought suit under title VII of the Civil Rights Act of 1964 as well as under the ADA.

II

Court’s Reasoning

  1. 42 U.S.C. §12211 excludes from ADA coverage approximately one dozen conditions, including gender identity disorders.
  2. The ADA can be read to define gender identity disorders narrowly to refer only to the condition of identifying with a different gender and not encompassing gender dysphoria, which goes beyond mere gender identification to include clinically significant stress and other disabling impairments.
  3. Legislative history of the ADA shows Congress discussed §12211 exclusions in two distinct ways. First, it was discussed in terms of sexual preference and whether it should be considered a disability. Second, there was a separate concern that the ADA would protect individuals from discrimination on the basis of a variety of socially unacceptable, often illegal behavior, if such behavior was considered to be the result of a mental illness.
  4. Gender dysphoria more properly belongs in the first category of §12211, non-disabling conditions concerning sexual orientation or identity.
  5. Any exceptions to ADA coverage, such as those listed in §12211, need to be read narrowly in order to permit the ADA to achieve a broad reach.
  6. Congress was careful to distinguish between excluding certain sexual identities from the ADA’s definition of disability while not including disabling conditions that persons of those identities might have.
  7. Considering the two categories, it is fairly possible to interpret the term gender identity disorder narrowly so as to refer to simply the condition of identifying with a different gender while not excluding from ADA coverage disabling conditions that persons who identify with a different gender may have, such as the case with gender dysphoria.
  8. Gender dysphoria goes beyond simple gender identity as it can, as it does in this case, substantially limit the major life activity of interacting with others, reproducing, and social and occupational functioning.
  9. Senator Harkin noted that while homosexuality, what we would call being gay or lesbian today, is not covered by the ADA, that would not prevent a gay or lesbian person from receiving coverage under the statute if that person has a disability. Similarly, the House Judiciary Committee said homosexual or bisexual individuals discriminated against because they have a disability, such as HIV, are protected under the ADA. Further, the House Judiciary Committee specifically rejected amendments excluding gays and lesbians with certain disabilities from ADA coverage.
  10. In order to state a valid ADA retaliation claim, a plaintiff must allege that: 1) she engaged in a protected activity; 2) she experienced an adverse employment action following the protected activity; and 3) there is a causal link between the protected activity and the adverse employment action. Causal connection can be shown by either temporal proximity or a pattern of antagonism coupled with timing. In this case, plaintiff plausibly alleged she engaged in protected activity by reporting the discrimination and requesting an accommodation for her disability. She was then subjected to a pattern of antagonism as a result of that reporting, including defendant’s allegedly intentional and repeated refusal to provide her with the correct name tag, and then terminated. Accordingly, plaintiff’s claim survives.

III

My Thoughts (Reading Christine’s blog entry, as mentioned above, is helpful to understanding this section. Any references to Christine, unless her treatise is mentioned, refer to the blog entry she posted on Workplace Prof Law Blog, linked to above).

  1. For those interested in gender dysphoria and the ADA, I highly recommend Christine’s treatise on the ADA and gender dysphoria, links above. It is really long but it is extremely comprehensive and not that difficult to read.
  2. I don’t see the EEOC under this administration using the ADA as a tool for protecting individuals discriminated against on the basis of their gender dysphoria, though under a different administration it certainly would be a possibility.
  3. I agree with Christine that Judge Leeson moved the gender identity disorder language from one section of §12211 to another. That bothers me because one would think that would be the job of the legislature to do.
  4. I also agree with Christine that it bears noting that the legislative history of the ADA is replete with derogatory comments towards people who are gay/lesbian/transgender/transvestites and that the exceptions contained in the ADA were a political compromise.
  5. If one reads Christine’s treatise, mentioned above, one sees that the medical data since the time the ADA was originally enacted in 1990 has evolved quite a bit so that medical evidence supports the conclusion gender dysphoria is based upon physical impairments, especially if one considers the very broad definition of disability in the ADA as amended. I wonder why Judge Leeson simply did not take this approach. It would have been a lot easier because that approach would stay within the explicit terms of the statute and would not involve rewriting the statute.
  6. I agree with Christine that another way Judge Leeson could have approached it is to say gender dysphoria as contained in the DSM-5 (2013) is not a gender identity disorder and therefore, is not excluded under the ADA. On this, Christine and I differ in that I believe this case can be read that Judge Leeson did precisely this. My problem with this approach is that the DSM in effect at the time the ADA was written, referenced in Christine’s treatise, clearly contemplated disabilities associated with gender identity disorder. Accordingly, if a judge attacks jurisprudence from the perspective of what the word meant at the time the legislation was enacted, then gender dysphoria at the time of the ADA’s original enactment in 1990 would have included coverage of gender identity disorder and therefore, would fall within the exclusion absent a physical condition.
  7. I agree with Christine that Judge Leeson could have simply held other medical conditions associated with a person with gender dysphoria are protected by the ADA. I also agree that Judge Leeson did in fact do this. Christine notes that the problem with this approach is the major life activities that are substantially limited for a person with gender dysphoria are not the result of the gender dysphoria itself but of the costs of dealing with the stigma that goes along with it. That makes sense to me. However, if such is the case, doesn’t that then turn it into a “regarded as,” case? The problem that presents is a person regarded as having a disability does not have any reasonable accommodation protections under the ADA.
  8. Alluded to in Christine’s comments above and covered extensively in her treatise, is that Judge Leeson could have also gone with an equal protection analysis. An equal protection analysis would draw upon the gay rights decisions of the United States Supreme Court to hold that it is unconstitutional to include persons with gender dysphoria from the ADA. The problem I have with that approach is that the Supreme Court in those decisions has noticeably stayed away from classifying gays and lesbian in an equal protection tier and has focused instead on substantive due process or a liberty interest. The other problem with this approach is that persons with disabilities have not been segmented out as of yet with respect to equal protection analysis depending upon their disabilities. Instead, persons with disabilities equal protection tier classification changes depending upon the facts of the case. See this blog entry for example. That said, I can definitely see the argument behind this approach since I discussed how people can fall into the variety of different equal protection tiers in my book when I discussed the 1971 California Supreme Court case of Sail’er Inn, Inc. v. Kirby.
  9. I think there is another approach that Judge Leeson could have taken. That is, why couldn’t he have decided that discrimination based upon gender dysphoria is sex discrimination? After all, the Seventh Circuit decided here that sexual orientation discrimination is sex discrimination. If sexual orientation discrimination is sex discrimination, then discrimination based upon gender dysphoria would also seem to me to be sex discrimination as well.
  10. If I am the defendant, I would move to certify this for appeal per 28 U.S.C. § 1292(b). On appeal, whether it be from this motion to dismiss or at a later time, it is certainly possible for all the reasons discussed here that the plaintiff may still win even if it is on different grounds.

5 Responses to Gender Dysphoria and the ADA

I haven’t had the chance to read Ms. Duffy’s papers, but I will dare to make a few remarks about this decision and its rationale.

First, the physical / mental distinction is no longer viable. All mental impairments have a physical origin. They were treated differently in the past because we were ignorant of the physical causes, but the more we know the less any distinction will make sense.

Second, treating gender dysphoria as something distinct from gender identity creates an artificial line whose location may be hard to determine. Transgender individuals come with a broad range of reactions to the underlying gender identity issue. Figuring out how badly one must feel to be disabled will require intense factual determinations, just as it already does with depression, anxiety disorders and the like.

Third, the causes of gender dysphoria are complex and sometimes external to the individual. While it may be inherently distressing to identify with a gender other than one’s physical gender, social norms and reactions also play a very large role in how transgender individuals feel. Transgender children may feel little or no stress until they are old enough to become aware of the social norms associated with physical gender. This interaction between the mental condition and social reactions to that condition creates analytical complexities. As an analogy consider an individual with a disfiguring physical condition. What if the disfiguring condition does not create any physical limitations, so that the limitation on major life activities comes entirely from society’s response to the condition? Is a negative social reaction to a particular condition part of the disability or part of the discrimination against the disabled person? If the social reaction to a condition makes it a disability then one could argue that being black is a disability given the limitations faced by black individuals in our society. That kind of argument was precisely what the exclusions in the statute were supposed to avoid; that is, the argument that gender identity or preference constitutes a disease of some kind.

Teasing out what part of gender dysphoria is part of the condition and what part is caused by society’s reaction will, I think, be difficult. It may also make “disability” dependent on the circumstances of the individual. In some communities gender identity has little or no effect on how an individual is viewed and may therefore have no effect on major life activities. Is that person less disabled than a transgender person in a community that is intensely biased against him or her and who therefore suffers more stress and anxiety?

Our firm’s work with transgender individuals has confirmed for me that they are just that; individuals whose reaction to their condition is individual and who may or may not suffer a disabling level of stress and anxiety. The distinction between being transgender and having gender dysphoria sounds good in theory, but will in fact promote discrimination because it will be too easy to put all transgender individuals in the category of those who are diseased or mentally ill.

Excellent thoughts Richard. Thanks! The only thing I might add that some of what you talk about might fall under the regarded as prong. Of course, in that situation, the person would not be entitled to any reasonable accommodations, which is why I suppose you don’t see it being used in this situation.

One more remark. It appears that the discrimination suffered by the plaintiff was not against his gender dysphoria, but simply his gender identity. If there is a difference, this matters.

Leave a Reply

Your email address will not be published. Required fields are marked *