Tuesday, August 8, 2017

Pennsylvania Court Says Gender Dysphoria is ADA Protected

One would think that gender dysphoria would not be a protected category under the Americans with Disabilities Act (ADA), because the ADA seems to specifically exclude it from being a covered disability. Section 12211 of the ADA excludes “transvestism, transsexualism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” from being covered under the Act. This would seem to pretty clearly exclude gender dysphoria or transgenderism from being a covered disability under the ADA.

Therefore, it was rather curious when a federal judge in Pennsylvania found that an employee’s gender dysphoria could be a protected category under the ADA. In Blatt v. Cabelas, a plaintiff argued that excluding gender dysphoria from ADA protection violated the Equal Protection Clause. The judge, however, refused to rule on this, and instead found that the plaintiff’s gender dysphoria created “clinically significant stress and other impairments that may be disabling,” and, therefore, was a covered condition under the ADA.

So, the judge’s ruling does not technically find that gender dysphoria is protected under the Americans with Disabilities Act, but instead the stress caused by it. In my opinion, this reasoning creates a slippery slope in which anything could be covered under the ADA. For example, the ADA excludes from coverage “compulsive gambling, kleptomania, and pyromania.” However, someone who suffers from compulsive gambling could also suffer from “significant stress” or other disabling impairments as a result of that compulsive gambling. What is the point of excluding conditions from ADA coverage if a judge could just say that the stress caused by those conditions is significant or disabling, thereby essentially nullifying the exclusion? It seems hard to believe that Congress intended this when it drafted the ADA.

We will see how the appellate court weighs in on this topic. I would find it hard to believe that it would support the Pennsylvania judge’s interpretation of the ADA. However, in light of the 7th Circuit’s ruling that Title VII of the 1964 Civil Rights Act prohibits discrimination based on sexual orientation when the Act makes no mention of sexual orientation, it is hard to know for sure how a court will interpret a statute.

It should be worth noting that in Illinois, and many other states, it is illegal to discriminate against an employee based on gender identity. However, there is no law that requires an employer to make a “reasonable accommodation” (i.e. a change in the workplace to allow a disabled employee to work) for those suffering from gender dysphoria, as the ADA would require.

What do you think? Should gender dysphoria be covered under the ADA? Share your thoughts with me at mdicianni@ancelglink.com.