Thanks to the ADA Amendments Act of 2008, the ADA now protects far more people with disabilities than it once did. However, the Amendments did nothing to change the ADA’s blanket exclusion of a small subset of impairments that includes Gender Identity Disorder (GID). Those who experience clinically significant and persistent distress as a result of an incongruence between their gender identity and assigned gender at birth, and who experience discrimination on that basis, have no recourse under federal disability law. This may be about to change.
On January 20, 2015, lawyers for Kate Lynn Blatt filed a first-of-its kind equal protection challenge to the ADA’s GID exclusion. According to Blatt’s attorneys: “The Congressional Record reveals nothing more than constitutionally impermissible discrimination, devoid of any compelling, important, or legitimate governmental interest. . . . The GID exclusion in the ADA was the result of moral animus on behalf of a small group of U.S. Senators, who, in a feverish attempt to exclude the mental impairments they deemed morally unfit, unconstitutionally deprived transgender individuals of the ADA’s protection.”
Along with GID, the ADA excludes pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs.
State and national LGBT rights organizations have filed an amicus brief in support of Ms. Blatt’s position:
“Federal law has an important expressive function, especially concerning the messages it sends about disadvantaged groups. The fact that Congress went out of its way to exclude GIDs, along with a variety of distinctly different conditions that the DSM classified as sexual behavior disorders and/or that the law treats as criminal or reckless, sends a strong symbolic message: transgender people have no civil rights worthy of respect. By maintaining this exclusion, the ADA perpetuates the very thing it seeks to dismantle: ‘the prejudiced attitudes or ignorance of others’ and the ‘inferior status’ that people with disabilities occupy in our society.”
Plaintiff's attorneys have notified the U.S. Attorney General of the constitutional challenge as required by the Federal Rules of Civil Procedure. The AG’s Office has 60 days to respond to the challenge, should it choose to do so. It has not done so yet.