Tuesday, July 28, 2015
The US Department of Justice (DOJ) and the EEOC read Title VII’s prohibition on sex discrimination to cover employment discrimination based on gender identity, including transgender status. Now, DOJ’s Civil Division is trying to use its reading of Title VII to avoid a ruling in an Equal Protection Clause challenge to the part of the Americans with Disabilities Act (ADA) that excludes “transsexualism” and “gender identity disorders not resulting from physical impairments” from the statutory term “disability.” 42 U.S.C. § 12111(b)(1).
In Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014), the plaintiff asserts Title VII and ADA claims against her former employer (Cabela). Here’s a simplified version of the alleged facts: The plaintiff alleged that in 2005, she was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder, a medical condition in which a person’s gender identity does not match his or her anatomical sex at birth” and that falls within the general definition of “disability” under the ADA. First Am. Compl. ¶ 10. Thereafter, the plaintiff “changed her name” from James to Kate Lynn and changed her physical appearance to conform to her female gender identity. Id. ¶ 11. But at her job, her employer allegedly refused her request for a “Kate Lynn” name tag, id. ¶ 16, and, because of that request, forced her to wear a “James” nametag and use only the men’s restroom until her “her name and gender marker were legally changed.” Id. ¶¶ 18-19. Thereafter, plaintiff alleged that she suffered insults, lost promotions, and received disfavored shifts in part to keep her away from customers. When plaintiff finally changed her name legally, she got her “Kate Lynn” nametag, albeit only after repeated complaining, but was only permitted to use the unisex “family” bathroom located in front of the defendant’s store. Kate Lynn was later fired for an allegedly pretextual reason.
In a partial motion to dismiss, defendant-employer Cabela argued that the ADA claims must be dismissed, mostly because Congress excluded the plaintiff’s alleged disability-- Gender Dysphoria – from ADA protection. 42 U.S.C. § 12111(b)(1). In response, Kate Lynn’s lawyers read the ADA exceptions for gender identity disorder and transsexualism (the “GID exclusion”) as equal to “exclusions for transgender people,” thereby creating “a transgender classification. The fact that not all transgender people have a GID diagnosis does not affect the conclusion that all people excluded by the ADA's GID exclusion are transgender.” In turn, they’ve asked the court to declare the ADA’s GID exclusion to violate the Equal Protection Clause (as read into the Fifth Amendment, Bolling v. Shape, 347 U.S. 497 (1954)), largely because (1) laws with transgender classifications deserve heightened scrutiny because transgender people are “a historically and politically marginalized class of people based on an immutable characteristic, irrelevant to their ability to contribute to society”; and (2) the Senate proponents of the GID exclusion—including former North Carolina Senator Jesse Helms—were really motivated by their moral disapproval of transgender people, and that doesn’t count as a sufficient government interest.
Thus far, nobody seems to want to try and argue that the ADA’s GID exclusion satisfies the Equal Protection Clause. In its reply brief, dated Feb. 17, 2015, defendant-employer Cabela’s lawyers wrote: “Cabela’s takes no position regarding the constitutionality of the ADA and defers to the United States Attorney General’s position regarding the constitutionality of the federal statute.” They then pressed their motion to dismiss in part by assuming the GID exclusion’s constitutionality.
In turn, in a statement, filed pursuant to 28 U.S.C. § 517, on July 21, 2015, the DOJ has asked the court to try to avoid the issue by deciding the plaintiff’s Title VII claims first:
[T]he [alleged] facts giving rise to Plaintiff’s Title VII and ADA claims substantially overlap. Moreover, the relief Plaintiff seeks under Title VII and the ADA is identical. Thus, the outcome of Plaintiff’s Title VII claims could render superfluous her ADA claims and, therefore, would obviate the need to resolve the constitutional challenge to the GID Exclusion. That approach is particularly appropriate given that discrimination because of gender identity, including transgender status, constitutes sex discrimination prohibited by Title VII.
Statement of Interest of the Unites States at 2 (citations and footnote omitted). In support of that last sentence, DOJ cited, among other things, its own reading to that effect.
This is hardly the first time that DOJ's Civil Division has tried to get a court to avoid a constitutional ruling on a federal statutory provision—after all, absent exceptional circumstances, its general charge is to defend federal statutes against constitutional attack. On the other hand, the DOJ’s reasoning is a little odd here. The general directive to avoid deciding constitutional questions usually applies as a canon of statutory construction, not as a directive to judges as to when and how they decided claims or defenses that entail some issue of constitutional law. Does this reasoning mean that, in a lawsuit asserting multiple claims for the same relief, courts generally should avoid deciding section 1983 claims against employers (that entail constitutional questions) until after they figure out whether the non-constitutional damages claims have merit? Besides, this seems to lead to some serious inefficiency. In cases with multiple and independent legal grounds for the same relief, should district judges invariably avoid so identifying such grounds if they are constitutional? Moreover, suppose the defendant-employer here moves for summary judgment on the Title VII claims and loses the motion. If there is a non-zero probability that the ADA’s GID exclusion is constitutional and suffices as a reason to dismiss the plaintiff’s ADA claims, why not decide that first, as opposing to going to trial and making the parties present evidence on, and making a jury decide, the material issues of fact for both the ADA and Title VII claims? Puzzling.