Sunday, May 21, 2017

Blatt v. Cabela's Retail: Are transgender individuals protected by the Americans with Disabilities Act?

District Court Judge Joseph Leeson's decision in Blatt v. Cabela's Retail, Inc., No. 5:14-cv-04822 (E.D. Pa. May 17, 2017), is perhaps the first to hold that discrimination based on transgender status may be covered by the Americans with Disabilities Act (ADA). By contrast, numerous courts have held that gender identity discrimination is a form of sex discrimination. Unlike Title VII, however, coverage under the ADA would not merely mean that it is unlawful to treat transgender workers worse than other workers but it also might mean that it is unlawful not to treat them better. This is because the ADA can require the modification of a neutral workplace policy, such as a leave or bathroom policy.

If the ADA provides more protections than Title VII, you might wonder why most of the focus has been on Title VII. The reason is that the ADA has a provision that appears to exclude coverage based on transgender status except in limited circumstances. Section 12211 of the ADA states:
[T]he term "disability" shall not include -

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
(2) compulsive gambling, kleptomania, or pyromania; or
(3) psychoactive substance use disorders resulting from current illegal use of drugs.
Judge Leeson interpreted the exclusion of gender identity disorders to apply only to the "condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt's gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling." Leeson reasoned:
Beginning with the text of the provision, the exceptions listed in § 12211 can be read as falling into two distinct categories: first, non-disabling conditions that concern sexual orientation or identity, and second, disabling conditions that are associated with harmful or illegal conduct. If the term gender identity disorders were understood, as Cabela's suggests, to encompass disabling conditions such as Blatt's gender dysphoria, then 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. But under the alternative, narrower interpretation of the term, this anomaly would be resolved, as the term gender identity disorders would belong to the first category described above.
I don't find this analysis persuasive. If the exclusion of gender identity disorders is limited to those that are not disabling, it's not clear why the exclusion of other conditions should not also be limited to instances in which they are not disabling. The language of the statute does not suggest that gender identity disorders should be treated differently. Moreover, if the ADA is so construed, it would mean that the exclusion of gender identity disorders is meaningless. The ADA, as enacted with the gender identity exclusion, only applied to disabling conditions, so limiting the exclusion as Leeson has done so converts the exclusion into a nullity.

Leeson failed to acknowledge the arguments advanced in either a joint amicus brief filed by numerous civil rights groups, including the Gay & Lesbian Advocates & Defenders (GLAD), or in a statement of interest filed by the Department of Justice.

The GLAD brief essentially argues that exclusion of "gender identity disorders" does not apply to "gender dysphoria" since they are not the same thing. In my view, even if this is correct, it does not mean that Blatt's gender dysphoria falls outside the scope of the statutory exclusion. Clearly, the two conditions overlap. Even if the term "gender dysphoria" covers a broader range of conditions than does the term "gender identity disorders," that does not mean that Blatt's gender dysphoria is not also a gender identity disorder excluded by the statute. Indeed, the GLAD brief notes that Blatt was "diagnosed with Gender Dysphoria, also known as Gender Identity Disorder.” The brief also advances policy arguments for coverage of both gender dysphoria and gender identity disorders. In this regard, the brief is not concerned with clarifying what forms of gender dysphoria are covered under the ADA but with advancing an argument for coverage of transgender individuals generally, and like Judge Leeson's interpretation, it effectively reduces the exclusion of gender identity disorders to a nullity.

The DOJ statement of interest makes the best stab at an interpretation of the exclusion that gives it some effect. DOJ focuses on the fact that the exclusion only applies to gender identity disorders not resulting from physical impairments. DOJ argues that the phrase "resulting from a physical impairment" broadly encompasses gender identity disorders "rooted in biology or physiology, even if the precise etiology is not yet definitively understood." DOJ further explains that "[w]hile no clear scientific consensus appears to exist regarding the specific origins of gender dysphoria (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."

As DOJ notes, if our emerging understanding establishes that all gender identity disorders are established by physical impairments, then that would mean that no gender identity disorders are excluded by the ADA. On this point, I agree with DOJ. It is possible that the exclusion applies to no gender identity disorders at all if, contrary to conventional thinking when the ADA was passed in 1990, all gender identity disorders are rooted in physical impairments.

The problem with this line of reasoning is that all physical impairments and all mental impairments necessarily are the result of some underlying physical cause, such as hormones, genetics, biology, etc. In the EEOC's guidance on psychiatric disabilities, the EEOC states:
The ADA rule defines "mental impairment" to include "[a]ny mental or psychological disorder, such as . . . emotional or mental illness." Examples of "emotional or mental illness[es]" include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.
It is clear that the EEOC considers at least some psychiatric disabilities, such as schizophrenia, to be the result of an underlying mental impairment. If you consult the Mayo Clinic website, however, it states: "It's not known what causes schizophrenia, but researchers believe that a combination of genetics, brain chemistry and environment contributes to development of the disorder." Does this mean that the EEOC is mistaken and that schizophrenia is actually the result of a physical impairment? Of course not, it just means that schizophrenia, like everything else, has a physical cause. The human mind is not a ghost in a machine. Thus, while DOJ rightly points to the statutory language that only excludes "gender identity disorders not resulting from physical impairments," it mistakenly interprets "physical impairments" as encompassing any impairment that has a "physical cause."

It's possible that the interpretations discussed here were driven by the desire to avoid difficult questions about constitutional protections. Blatt has contended that the gender identity exclusion violates her equal protection rights. Under the doctrine of "constitutional avoidance," courts go out of their way to avoid addressing constitutional questions if they can possibly avoid those questions. In this case, however, unless there's a fourth argument out there that's much better than the ones I've discussed, the constitutional question seems unavoidable.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.