One of the topics that we have discussed before (see here for example), is transgender individuals alleging that they have been the victims of disability discrimination. Recently, transgender plaintiffs have also had success in alleging that they are the victims of sex discrimination as sex discrimination includes stereotyping based on gender, which by definition discrimination against a transgender person is. The case of the day is Doe v. Massachusetts Department of Corrections decided by United States District Court of Massachusetts on June 14, 2018. As usual, the blog entry is divided into categories and they are: facts; issues presented; holdings; court’s reasoning; and takeaways/thoughts. The reader is free to focus on any or all of the categories.
A transgender woman was assigned to a men’s prison as a result of her birth being a man even though since her teenage years, she has identified as a woman, including hormone treatments etc. As you might expect, being transgender in a men’s prison created all kinds of problems. If you are a fan of Orange Is the New Black, the problems arising are easily imagined and are amply detailed in the case itself. As an aside, Massachusetts recently passed a Criminal Justice Reform Act mandating respecting the gender identity of a prisoner, but that law comes too late for this particular plaintiff. Since she was unable to get a transfer to a woman’s prison, she brought suit alleging violations of the ADA, the Rehabilitation Act, and §1983 vis-à-vis the 14th amendment to the U.S. Constitution. She sought injunctive relief seeking the following:
(1) transfer Doe to MCI-Framingham [a DOC facility for women]; (2) enjoin Defendants from using male correctional officers to conduct strip searches of Jane Doe, except in exigent circumstances; (3) enjoin Defendants from forcing Jane Doe to shower in the presence of men and with a shower curtain that does not adequately cover her; (4) enjoin Defendants from treating Jane Doe differently than other women held by the DOC; (5) train all staff on how to appropriately accommodate, treat and communicate with individuals with Gender Dysphoria within 60 days of this order; (6) enjoin Defendants from using male pronouns when speaking to or about Jane Does; (7) enjoin Defendants from referring to Jane Doe by her former male name (or any abbreviated version thereof); (8) refer to Jane Doe by her chosen female name; and (9) award such other relief as is just and proper.
The Department of Corrections filed a motion to dismiss for failure to state a claim.
- Is gender dysphoria a disability under the ADA/Rehabilitation Act?
- Does the ADA’s exclusion for gender identity disorders apply to this case?
- Is the ADA’s exclusion of gender identity disorders not resulting from physical impairments unconstitutional under the 14th amendment to the U.S. Constitution?
- Are services, programs or activities involved?
- For equal protection purposes, what level of scrutiny does a transgender individual get?
- Have there been sufficient allegations for the plaintiff to allege due process violations?
- Intermediate scrutiny
- A person born with gender dysphoria is born with circulating hormones inconsistent with their gender identity and, in the plaintiff’s case, requires lifelong treatment for gender dysphoria, including the administration of female hormones. As such, she is incapable of reproduction. So, the major life activities that are substantially limited are both endocrine and reproductive functions.
- 42 U.S.C. §12211(b)(1) removes from the protection of ADA the following: transvestism; transsexualism; pedophilia; and gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.
- As medicine has evolved over the years, gender dysphoria has come to mean something different than gender identity disorder. That in and of itself is sufficient to raise a disputed question of fact as to whether gender dysphoria falls outside of the ADA’s exclusion of gender identity based disorders as Congress understood it 28 years ago.
- It is possible that gender dysphoria results from physical causes, and plaintiff raised a disputed question of fact with respect to herself on that score.
- The current diagnosis of gender dysphoria in the DSM-V requires attendant disabling physical symptoms, in addition to manifestations of clinically significant emotional distress.
- Where the government draws a distinction against a historically disadvantaged group and where that distinction has no other basis, that is a reason to undermine the discriminatory classification rather than uphold it.
- If you look at the list that “gender identity disorders not resulting from physical impairments,” is contained within, it is paired with conduct viewed by society as criminal or immoral or even lewd. That raises a serious question as to the perspective the drafters of this particular provision had when enacting it. Also, included in that list are: compulsive gambling; kleptomania; pyromania; and psychoactive substance use disorders resulting from current illegal use of drugs. All of those are activities are illegal, dangerous to society, or the result of harmful vices.
- Squaring the exclusion of otherwise bona fide disabilities without remedial purpose of the ADA simply can’t be done. That is, the remedial purpose of the ADA is addressing discrimination against individuals with disabilities based on antiquated or prejudicial conceptions of how they came to their station in life. Accordingly, to the extent the ADA can be read as excluding an entire category of people from its protection because of their gender status, that reading is best avoided.
- Although the language of the ADA talks about services, programs, or activities, in reality that phrasing refers to prohibiting all discrimination by a public entity (check out this blog entry as well). As such, the ADA’s broad language brings within its scope anything a public entity does.
- Plaintiff also sufficiently alleged a disparate impact claim because she had been put into a prison environment contrary to a critical aspect of her prescribed treatment of being allowed to live as a woman.
- Where a state creates a classification based on transgender status, that is a classification based on sex and therefore, gets heightened judicial scrutiny above the rational basis test i.e. intermediate scrutiny.
- For discrimination against the member of a group subject to intermediate scrutiny to survive, that discrimination must serve important governmental objectives and be substantially related to the achievement of those objectives.
- The Department of Corrections did not meet its burden of demonstrating that housing her and other similarly situated transgender prisoners in facilities corresponding to their birth sex serves important governmental interest.
- Generalized concerns for prison security are insufficient to meet the burden of proof imposed by intermediate scrutiny. In particular, the allegations of the complaint are that the Department of Corrections houses inmates according to the biological sex without regards to particularized considerations. For example, disciplinary problems or security risks, neither of which were applicable to the plaintiff.
- For a due process claim to survive, a prisoner has to show that: 1) the state, through the duration and conditions of confinement, imposed atypical and significant hardship on the prisoner giving rise to a protected liberty interest; and 2) the state deprived the prisoner of the process the prisoner was due to protect that interest. The plaintiff alleged more than sufficient facts to show that she had to deal with atypical and significant hardships in relation to the normal incidents of prison life as compared to other inmates in the Massachusetts prison system.
Takeaways and Thoughts
- Early on in the opinion, the court states this: “in addition to demonstrating that she has a physical or mental impairment that substantially limits one or more major life activities, Doe must also establish a record of such an impairment, or being regarded as having such an impairment by representatives of the public entity in question, generally in the form of an adverse action or actions.” This statement is simply not correct. It is true that every ADA or Rehabilitation Act claim requires an adverse action. However, that is quite a different kettle of fish than saying of the three prongs of what it means to have a disability, two of them must be satisfied. That is simply not the case. Satisfying an actual disability, or a record of a disability, or being regarded as having a disability all get you coverage under the ADA. You don’t need to have more than one of them.
- I have now seen the movie RBG twice (once, while visiting a buddy in Columbia, Missouri, and once, with my wife), and am hoping to see it a third time with my daughter when she returns back from camp. From that movie, I learned that RBG, then attorney for the plaintiff, tried to get the Supreme Court to buy off on sex-based discrimination being put in a suspect class, but ultimately proved unsuccessful by one vote. As we have discussed before, equal protection jurisprudence all turns on what category the individual falls within: strict scrutiny-race; intermediate scrutiny-sex-based discrimination; or rational basis-everyone else. Here, once the court decided that intermediate scrutiny applied, the game was over for the defendant. It is extremely difficult for a defendant to justify discrimination once the intermediate scrutiny or higher level is applied.
- My concern with the equal protection jurisprudence is that it’s incredibly divisive. For example, this decision put transgender in the intermediate scrutiny category. However, unless you are talking about access to the courts, we know it is extremely unclear where persons with disabilities fall into. For example, persons with disabilities per this case are in the rational basis class when it comes to employment. Everything else depends upon the facts.
- With this decision, you have an individual that gets protection under the ADA and the Rehabilitation Act but then even though that is a disability, receives higher equal protection clause protection because transgender is sex-based discrimination. If a prisoner has a different disability other than transgender, it is entirely possible that person would get a lower level of scrutiny than intermediate scrutiny. Hard to believe that this is where equal protection jurisprudence takes us, but it does.
- Blanket policies are never a good idea when it comes to the world of the ADA. See this blog entry for example.