While courts and states remain divided about whether “sex discrimination” includes discrimination against transgender people under Title VII of the Civil Rights Act of 1964, a new cause of action has emerged to protect the rights of transgender people: violation of the Americans with Disabilities Act (“ADA”).

As my partner Rich Cohen has stated, the EEOC’s position is that “Title VII of the Civil Rights Act of 1964, [] protects employees from sex discrimination, including harassment based on gender identity and sexual orientation,” as the EEOC said in a recent press release. However, Title VII does not explicitly forbid discrimination based upon gender identity and sexual orientation, so the EEOC bases its gender identity and sexual orientation cases upon sex discrimination, a divisive contention. On a federal level, only the federal appeals court in Chicago has adopted the EEOC’s position, holding that Title VII prohibits employment discrimination based upon sexual orientation.

Transgender Under the ADA

Being transgender in and of itself is not a disability, and, in fact, the ADA explicitly excludes claims based on gender identity. Now, for the first time, a Pennsylvania federal court judge has ruled that transgender people can sue under the ADA—for discrimination, failure to accommodate, and retaliation—, and allowed a transgender plaintiff to proceed in a lawsuit under the ADA against a large retail employer.

In his decision, the U.S. District Court judge noted “[I]t is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have — such as [a person’s] gender dysphoria, which substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning.”

Why is this significant?

The amended complaint pleaded that doctors had diagnosed the plaintiff with “Gender Dysphoria, also known as Gender Identity Disorder,” which substantially limits one or more of her major life activities, including, but not limited to, interacting with others, reproducing, and social and occupational functioning.

It’s a landmark case because the ADA includes language that seems to prevent transgender people from filing suit for ADA violations—it excludes from disabilities “transsexualism” as well as “gender identity disorders not resulting from physical impairments.”

The judge certainly thought so. He recognized that the law “must be broadly construed to effectuate its purposes.” As a result, he concluded, “any exceptions to the statute … should be read narrowly in order to permit the statute to achieve a broad reach.”

This would include, as with all disability situations, an employer’s requirement to engage in the interactive process and provide a transgender employee with reasonable accommodations under the ADA. Such employees will also be under the “no retaliation” umbrella provided by the ADA regardless of whether or not gender identity is included as “sex discrimination” by statutory amendment or case law.

Employer Takeaway

Will this decision pave the way for more decisions like it? Or be reversed on appeal?

We’ll have to wait and see. In the interim, at least in the Eastern District of Pennsylvania, employers should be aware of this case and any appeal that follows.