The ADA explicitly excludes three medical conditions closely associated with transgender people: “transvestism,” “transsexualism” and “gender identity disorders not resulting from physical impairments.” 42 U.S.C. § 12211. The structure of the exclusions strongly implies, and the legislative history appears to confirm, that these exclusions were based on the moral opprobrium of two senior senators, conveyed in the eleventh hour of a marathon day-long floor debate, who believed these conditions to be undeserving of legal protection.
On May 18, 2017, in Blatt v. Cabela’s Retail, Inc., the United States District Court for the Eastern District of Pennsylvania held that gender dysphoria—a new diagnosis (2013) that describes the clinically significant distress that some transgender people experience—is not excluded by the ADA. Significantly, the U.S. Department of Justice under both the Obama and Trump administrations has reached the same conclusion in statements of interest filed in Blatt and a second federal district court case. The Blatt case opens the door for transgender people who have, had, or are perceived as having gender dysphoria to pursue civil rights protections under the ADA. This includes challenges to:
discriminatory employment practices, such as termination, the failure to provide reasonable accommodations, and the denial of gender-appropriate uniforms, nametags, and bathroom access;
discriminatory government services, such as state prison policies that deny access to proper medical care and gender-appropriate facilities and uniforms; public and private school policies that deny access to gender-appropriate facilities and other services, birth certificate laws that require proof of gender confirmation surgery in order to change the gender marker on one’s birth certificate, and state laws like North Carolina’s H.B. 2 that deny access to gender-appropriate facilities; and
discrimination in places of public accommodation (e.g., hotels, restaurants, theaters, and retail stores), such as the denial of admission or refusal of services.
This section of the ADA Project website is aimed at helping plaintiffs, lawyers, and courts better understand the ADA’s protections against discrimination based on gender dysphoria by providing helpful commentary and model court filings challenging gender dysphoria discrimination.