Third Circuit Court Rules Gender Dysphoria May Be Disability Under ADA
In a departure from the recently developing law, a federal court judge from the Eastern District of Pennsylvania ruled that the Americans with Disabilities Act (“ADA”) may cover gender dysphoria, and other conditions related to gender identity disorder – opening the door to expanding employment protections to some transgender individuals under the ADA.
In Blatt v. Cabela’s Retail, Inc., a transgender woman filed Title VII and ADA claims against her former employer claiming that she had suffered disability discrimination and retaliation based on her gender dysphoria. The plaintiff alleged that her gender dysphoria was characterized by clinically significant stress and substantially limited one or more of her major life activities, including but not limited to, interacting with others, reproducing, and social and occupational functions. The employer sought dismissal of the ADA claims on the grounds that gender identity disorders are expressly excluded from coverage under Section 12211 of the ADA. In response, the plaintiff argued that the ADA’s exclusion of gender identity disorders violated her equal protection rights under the Constitution.
What makes this case unique, and its holding potentially narrow, is its reliance on the legal “constitutional-avoidance canon” which, if possible, requires the court to interpret a statute in a way that avoids any constitutional questions raised by the plaintiff. Here, the court interpreted the ADA to allow plaintiff to proceed with her disability discrimination claim because “this interpretation allows the Court to avoid the constitutional questions raised” by the plaintiff.
In reaching its holding, the court noted that two categories of conditions are explicitly excluded from protection under the ADA: non-disabling conditions concerning sexual orientation and identity (e.g., homosexuality and bisexuality), and conditions associated with harmful or illegal conduct (e.g., pedophilia and kleptomania). The court narrowly interpreted these exceptions and found that the ADA does not exclude protection of “conditions that are actually disabling but that are not associated with harmful or illegal conduct” – such as the gender dysphoria affecting the plaintiff. This line of reasoning in many ways mimics how the ADA approaches pregnancy: while the ADA does not cover ordinary pregnancies, complications arising from the pregnancy can trigger ADA protection.
The court also noted that this interpretation is consistent with the Third Circuit’s mandate that the ADA is “a remedial statute, designed to eliminate discrimination against the disabled in all facets of society. . . [and] must be broadly construed to effectuate its purposes.” Thus, the judge wrote, any exceptions in the ADA “should be read narrowly in order to permit the statute to achieve a broad reach.” As such, the Court denied the employer’s motion to dismiss.
This is yet another case in a recent wave of litigation concerning protections for LGBT individuals under the federal employment statutes, including Title VII. This ADA challenge represents a different approach to gender equity litigation that will warrant close monitoring to see how it impacts the development of jurisprudence – particularly since it is possible that the court may not have ever engaged in this exercise had the plaintiff had not raised a constitutional argument. In the meantime, employers should be mindful of their duties under the ADA to accommodate disabling impairments, even if the underlying condition is arguably not covered by the ADA.