By: Anne Cullen
Law360 (July 12, 2021, 6:49 PM EDT) — Despite some major carveouts in the Americans with Disabilities Act surrounding transgender individuals, federal district courts are increasingly endorsing the claim that gender dysphoria merits protections under the federal anti-discrimination law.
Medical research makes clear that the condition can be severely disabling, as the American Psychiatric Association defines gender dysphoria as clinically significant distress or impairment related to a strong desire to be of another gender, and says it can interfere with someone’s social life, their ability to do their job as well as other important daily functions.
However, part of the ADA that hasn’t been touched since it was written three decades ago makes clear that “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments” do not qualify as disabilities.
These “conditions” are lumped among a crop of others that lawmakers said don’t make the cut, including pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, and pyromania.
While some attorneys say the outdated section of the law gives transgender individuals a steep hill to climb when they want to bring a gender dysphoria bias claim in court, many courts that have actually grappled with this question cleared these allegations to move ahead.
“There’s overwhelming support by courts for coverage of gender dysphoria under the ADA and the Rehab Act,” said Quinnipiac University associate dean and disability law professor Kevin M. Barry, who has penned academic papers and court filings on the issue.
Case law does appear to be trending in one direction, but this area of law is still unsettled; a Law360 analysis found that federal district courts have issued fewer than two dozen decisions on the issue — primarily in prisoners’ rights cases — and the question has not yet been tackled by an appeals court.
The issue will continue to crop up, experts predict, potentially forcing courts to solidify the legal landscape one way or the other.
“It’s certainly an emerging issue under the ADA that I think practitioners are going to be confronting in the future,” said disability law expert Jonathan Mook of DiMuroGinsberg PC. Here Law360 takes a look at where the law stands when it comes to the status of gender dysphoria under the ADA and its federal sector counterpart, the Rehabilitation Act.
Seminal Blatt Case Makes Waves
While the law specifically excludes certain “gender identity disorders,” a Pennsylvania federal judge created a stir in 2017 when he declared that gender dysphoria sits outside that category.
The decision, Blatt v. Cabela’s Retail Inc. , marked the first time a court said gender dysphoria could be a disability under the ADA. U.S. District Judge Joseph F. Leeson Jr. said gender identity disorder narrowly refers to the condition of identifying with a different gender, not the disabling conditions, like gender dysphoria, that might come along with it.
Judge Leeson cleared employment discrimination allegations against sports retailer Cabela’s to move ahead in May 2017, and the case settled shortly after. Quinnipiac University’s Barry, who represented a handful of LGBTQ advocacy organizations that chimed into the case to argue gender dysphoria qualifies as a disability, told Law360 this was the right call.
“The Blatt court said that when the ADA excluded gender identity disorder, what Congress was really excluding was trans identity, and trans identity is not a disability,” he said. “That is true.”
However, other experts aren’t so sure.
Constangy Brooks Smith & Prophete LLP partner Robin E. Shea, who counsels employers, said there’s a strong argument that specific exclusions in the ADA encompass gender dysphoria.
Shea told Law360 that the Blatt case may have gotten it wrong when they decided otherwise. “I think they might have stretched [the ADA] with that decision,” Shea said.
Physical Impairment Theory Wins Court Favor
Though Judge Leeson’s take was the first on the issue, his theory isn’t the one that has taken center stage in the legal battles that have followed.
In the years since the Blatt decision, many of his peers on the federal bench who have concluded gender dysphoria might be a disability under the ADA made their finding based on the statute’s language surrounding “physical impairments.”
Because the law says “gender identity disorders not resulting from physical impairments” do not qualify, a handful of federal courts have found that when someone makes a claim that their gender dysphoria did stem from a physical cause, their condition may merit ADA protection.
Federal courts in Massachusetts, Idaho, Illinois, Florida, and Georgia have all cleared ADA claims relating to gender dysphoria to move ahead based on this theory.
“The piece that a lot of courts are struggling with is this carveout that the ADA contains for gender identity disorders,” said Eckert Seamans member Lindsey Conrad Kennedy, who advises employers. “As we’ve seen pretty recently, courts and plaintiffs are finding ways to get around this carveout.”
U.S. District Judge Richard G. Stearns in Massachusetts was one of the first to take this stance three years ago in a legal battle lodged by a transgender inmate who sued under the pseudonym Jane Doe.
Judge Stearns pointed out in his mid-2018 decision in Doe v. Massachusetts Department ofCorrection that a growing body of medical research shows that gender dysphoria may come from hormonal and genetic drivers.
He ruled that “the continuing re-evaluation of GD underway in the relevant sectors of the medical community is sufficient, for present purposes, to raise a dispute of fact as to whether Doe’s GD falls outside the ADA’s exclusion of gender identity-based disorders as they were understood by Congress 28 years ago.”
A handful of courts have made similar findings in the years following. In Georgia federal court late last year, a federal judge ruled in Lange v. Houston County , Georgia, that a deputy sheriff with gender dysphoria could move ahead with her claim against the county because she had clearly alleged that the condition stems from a physical impairment.
While the county insisted that the employee, Anna Lange, hadn’t shown her specific condition was rooted in any physical cause, U.S. District Judge Marc T. Treadwell said she didn’t need to make this showing to defeat the county’s dismissal bid.
“As a matter of pleading, Lange clearly alleges that she has a condition that results from physical impairment,” Judge Treadwell said. “Because she has alleged that, the court cannot conclude as a matter of law that the statutory exclusion of ‘gender identity disorders’ applies.”
That case is now in the midst of discovery.
And just last month, in Pennsylvania federal court, U.S. District Judge Karen S. Marston cleared an ADA claim against the Hospital of University of Pennsylvania to move ahead on similar lines, citing the Lange decision.
Save for some cases in which a plaintiff — usually those lacking legal counsel — didn’t quite make the “physical impairment” argument clearly and strongly enough, Quinnipiac University’s Barry said courts have nearly universally shown they’re on board with this angle.
“Almost every court that has addressed that issue has accepted that theory of coverage,” Quinnipiac University’s Barry said. “That is the theory that courts are saying is a path by which gender dysphoria finds coverage under the ADA and Rehab Act.”
The federal government has thrown its weight behind this theory too. In a handful of briefs filed in employment, prisoner rights and other civil rights cases over gender dysphoria since 2015, the Department of Justice under both the Obama and Trump administrations interpreted the ADA to cover gender dysphoria because it said the condition may have physical roots.
“While no clear scientific consensus appears to exist regarding the specific origins of genderdysphoria (i.e., whether it can be traced to neurological, genetic or hormonal sources), the current research increasingly indicates that gender dysphoria has physiological or biological roots,” the Justice Department argued in the Blatt case in 2015.
The Justice Department again made the same argument under the Trump administration twoyears later, insisting in a transgender woman’s case over New Jersey’s birth certificate rules that her gender dysphoria counts as a disability because she had plausibly alleged it stemmed from a physical impairment.
Some Gender Dysphoria Bias Claims Shot Down
On the other side of things, courts in Ohio, Alabama and Virginia have rejected some individuals’ claims that their gender dysphoria is protected by the anti-discrimination law, though none of these courts undermined the physical impairment theory.
U.S. District Judge George C. Smith in Ohio primarily took aim at the Blatt decision when he threw out construction worker Tracy Parker’s allegation of disability discrimination based on her gender dysphoria. The judge ruled in 2018 that he can find “no support, textual or otherwise” for the interpretation set out in Blatt.
“The clear result is that Congress intended to exclude from the ADA’s protection both disabling and nondisabling gender identity disorders that do not result from a physical impairment,” he said.
Parker couldn’t move ahead on the physical impairment theory because she’d left that argument out of her complaint, Judge Smith said. While Parker had cited medical research in follow-up filings, Judge Smith said he can’t consider evidence lodged outside her complaint.
In 2019 in Alabama, a federal judge said in a workplace bias case against Northrop Grumman that the terms “gender identity disorder” and “gender dysphoria” are legally synonymous — also countering the Blatt decision — and that there was no physical impairment behind the Northrop Grumman employee’s condition to trigger the ADA.
“A condition of ‘gender dysphoria’ (formerly described as a ‘gender identity disorder’) that does not result from a physical impairment is expressly excluded from the definition of disabilities covered by the Americans with Disabilities Act,” U.S. District Judge C. Lynwood Smith said.
Just last month, a transgender woman who was incarcerated in Virginia wasn’t able to convince a federal judge that her gender dysphoria counted as a disability because she hadn’t made the physical impairment argument either.
“There’s been a new and increasing number of decisions on this topic and courts have really come out in all different directions,” Eckert Seamans’ Kennedy said.
Bostock’s Impact On Gender Dysphoria Case Law
While experts agree this question will crop up more often in the courts, they say the rate at which cases are filed could be affected by how broadly the government and the courts interpret the U.S. Supreme Court’s landmark LBGTQ rights decision in Bostock v. Clayton County.
In the watershed ruling, the justices made clear that Title VII, the federal law barring discrimination in the workplace, bans bias on the basis of gender identity and sexual orientation.
Because transgender workers now have more protections under federal law, DiMuroGinsberg’s Mook said it’s possible that those who suffer from gender dysphoria may choose to sue only under Title VII and forego their ADA claim, potentially leading to a drop-off in the employment-related cases surrounding gender dysphoria.
“Some of the ADA litigation is really going to depend upon how broadly the Title VII protections are interpreted for transgender individuals, the narrower those protections are interpreted to be, litigation under the ADA would be more prominent,” DiMuroGinsberg’s Mook said.
At the moment, the U.S. Equal Employment Opportunity Commission has given Bostock a wide reach, making clear in guidance rolled out this summer that employers must accommodate their LBGTQ employees when it comes to dress codes, pronouns, bathrooms and other issues.
However, this doesn’t mean these claims aren’t still going to bubble up. Earlier this month, a former associate professor at Pennsylvania State University hit the institution with a discrimination lawsuit claiming they were denied tenure because they’re transgender and the school violated the ADA by not accommodating their gender dysphoria.
“I do think we will see more disability claims in the gender dysphoria claims across the board,” said Quinnipiac University’s Barry.
–Additional reporting by Adam Lidgett, Amanda Ottaway, Vin Gurrieri and Braden Campbell. Editing by Vincent Sherry.