A federal district court judge in Pennsylvania recently decided that an individual with gender identity disorder had a protected disability under the ADA.  The decision is somewhat surprising because section 12211 of the ADA specifically excludes “gender identity disorders.” The case is Blatt v. Cabela’s Retail, Inc. (E.D. PA 5/18/17). The plaintiff alleged that she was diagnosed with “gender dysphoria” (which is also known as gender identity disorder) and that this condition substantially limited one or more of her major life activities, including, but not limited to, interacting with others, reproducing, and social and occupational functioning. She alleged that shortly after she was hired, her employer discriminated against her because of her disability and subsequently terminated her employment for discriminatory and retaliatory reasons. 

Avoiding a constitutional issueThe court concluded that the plaintiff's gender identity disorder was a protected disability – notwithstanding the express exclusion of gender identity disorders in section 12211 of the ADA. The court reached this result through the relatively obscure “constitutional avoidance canon” which requires courts to interpret statutes in a way that avoids a constitutional issue, if possible. Here, the plaintiff argued that if the ADA did not provide protection then the ADA’s exclusion of gender identity disorders violated her right to equal protection under the Fourteenth Amendment to the Constitution and the ADA itself was unconstitutional in that regard.

Gender identity vs. Impairments resulting therefrom. To avoid having to address the constitutional issue, the court concluded that the term gender identity disorder as used in the ADA should be “read narrowly to refer to only the condition of identifying with a different gender” and should not encompass a condition like the plaintiff’s gender dysphoria which is also characterized by “clinically significant stress and other impairments that may be disabling.” The court reasoned that such a condition was different from gender identity standing alone because it was “actually disabling.” The court concluded that this interpretation of the ADA was consistent with Congress’ intent in adopting section 12211 because Congress had been careful to distinguish between excluding certain sexual identities, on the one hand, and not excluding disabling conditions that persons who have such an identity might experience, on the other hand.

Lessons for employers?   Courts have found ways to interpret existing laws, including the ADA and Title VII’s prohibition of gender discrimination, to protect individuals with a gender identity disorder from discrimination.   There are also a number of state laws that may offer protection to transgender individuals. This is an area of the law that will probably evolve over time to grant more protections to transgender individuals and employers may want to consider being ahead of the curve on this trend.