As our readers know, discrimination against transgender individuals is often treated as sex discrimination under Title VII, as a form of unlawful “sex stereotyping.”
But is it also a “disability” within the meaning of the Americans with Disabilities Act when an individual identifies with a gender other than his or her biological one?
Transgender individuals don’t usually invoke the ADA, presumably because they don’t consider themselves to be “disabled.” But more importantly from a legal standpoint, the ADA specifically excludes gender identity disorder as a “disability” within the meaning of the law.
Section 12211 of the ADA contains a number of exclusions, including homosexuality and bisexuality (on the ground that they are not “impairments” at all).
Then it goes on to exclude “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs.” (Emphasis added.)
“Transsexualism” and “gender identity disorders not resulting from physical impairments” seem to be 1990s-era terms for the state of being what we call today “transgender.” And based on the other conditions that “transsexualism” and “gender identity disorders” are grouped with, it appears that in 1990 Congress considered these to be anti-social behaviors like peeping, child molestation, compulsive stealing, and compulsively setting things on fire.
(What can I say? 1990 was a long time ago.)
Be that as it may, based on the plain language of Section 12211, I would have believed that an individual with a gender identity disorder not resulting from a physical condition (what we now call “gender dysphoria”) was excluded from ADA protection.
But in Blatt v. Cabela’s, Inc., a federal judge in Pennsylvania found that the plaintiff’s gender dysphoria could be an ADA-protected condition, despite the exclusion in Section 12211.