Is Distress Over Your Assigned Gender a Disability?
District Court Narrowly Construes the ADA to Allow a Transgender Employee to Pursue Discrimination and Retaliation Claims
Pennsylvania District Court Judge Joseph F. Leeson recently ruled that the Americans with Disabilities Act’s (“ADA”) provision excluding “gender identity disorders” from ADA coverage should be construed narrowly, and held that a transgender employee’s disability discrimination and retaliation claims arising from gender dysphoria are actionable under the ADA. Specifically, Judge Leeson ruled that the ADA’s “gender identity disorder” exclusion applies only to the “non-disabling condition” of an inability to identify with an assigned gender, but that certain “disabling conditions” (e.g. gender dysphoria) that may affect individuals with gender identity disorders are disabilities under the ADA.
The plaintiff, Kate Lynn Blatt, is a transgender employee that worked at Cabela’s from September of 2006 until her termination in February of 2007. In addition to being transgender, Blatt suffers from gender dysphoria, a condition that includes distress, anxiety and/or depression due to an inability to identify with an assigned gender. Blatt claims that gender dysphoria negatively impacted her ability to interact with others, thereby limiting her social and occupational functioning. In addition to being forced to wear an inaccurate name tag, Blatt alleges that she was not permitted to use the female restroom. She also alleges that she was subject to slurs and taunts from coworkers.
In her amended complaint, Blatt also asserts claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. Cabela’s sought dismissal of the ADA claims on grounds that Section 12211 of the ADA states that “gender identity disorders” are not disabilities under the ADA. Cabela’s did not seek dismissal of the Title VII claims. In her brief in opposition to Cabela’s partial motion to dismiss, Blatt asserted that the exclusion of gender dysphoria from ADA coverage violates her equal protection rights.
In his opinion denying Cabela’s partial motion to dismiss, Judge Leeson set forth that the constitutional-avoidance canon barred him from addressing the constitutionality of Section 12211 so long as an alternate interpretation of the provision was “fairly possible.” Judge Leeson opined that gender dysphoria is distinguishable from the “gender identity disorders” specifically identified in Section 12211. In particular, he reasoned that Section 12211 can be broken down into two distinct categories: 1) non-disabling conditions concerning sexual orientation and/or gender identity (e.g. bisexuality and homosexuality); and 2) disabling conditions associated with harmful or otherwise illegal conduct (pedophilia, pyromania, and kleptomania). According to Judge Leeson, if Section 12211 is understood to exclude disabling conditions such as gender dysphoria, “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.”
Likewise, Judge Leeson noted that a narrow construction of Section 12211 is consistent with Third Circuit precedent that requires the interpretation of the ADA as “a remedial statute designed to eliminate discrimination. . .” Accordingly, he concluded “it is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, and not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have…”
Although Judge Leeson’s decision is not precedential, it may serve as a guidepost for similar cases pending in other District Courts. As a result, employers should be aware that transgender employees who assert claims of gender identity discrimination may alternatively pursue claims under the ADA. Employers should follow the EEOC’s guidance regarding LGBT workers in order to insulate themselves from similar claims in the future. As always, HR Legalist encourages employers with questions or concerns to consult experienced legal counsel.
Significant research and writing assistance provided by Ajay Ravindran, a 2L at Duke University Law School