DOJ’s Second Try: Avoiding the ADA’s Gender-Identity-Disorder Exclusion

            How will the Department of Justice (DOJ) defend against an Equal Protection Clause challenge to that part of the Americans with Disabilities Act (ADA) that excludes “gender identity disorders not resulting from physical impairments” from the statutory term “disability,”  42 U.S.C. § 12211(b)(1) (the “GID exclusion)?  When we last talked about Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014) —an employment discrimination lawsuit brought by a transgender plaintiff.—DOJ had asked the district judge to avoid the constitutional issue by deciding the plaintiff’s Title VII claim (discrimination because of gender identity) instead of her ADA claim. The district court didn’t buy it and asked DOJ to say more or intervene.

            So, a second try.  DOJ has a new constitutional-avoidance argument: According to “a growing body of scientific evidence,” gender dysphoria—the plaintiff’s alleged disability—is a gender identity disorder that does “result[ ] from physical impairments.” Therefore, the district court can (and must) read the ADA’s GID exclusion not to apply in this case.  The ADA’s definition of disability contemplates impairments as “physical” or “mental”.  42 U.S.C. § 12102(1)(A) (“a physical or mental impairment”). DOJ’s key move here is to read the phrase “resulting from physical impairments” in the GID exclusion to not cover “GIDs rooted in biology or physiology, even if the precise etiology is not yet definitively understood,” that is, a GID that “has a physical basis.” Citing various sources in support, including a recent literature review (Saraswat et al., 2015), DOJ concludes: “While no clear scientific consensus appears to exist regarding the specific origins of gender dysphoria (i.e., whether it can be traced to neurological, genetic, or hormonal sources), the current research increasingly indicates that gender dysphoria has physiological or biological roots.”

            In response, the defendant-employer agreed that the GID exclusion doesn’t cover gender dysphoria stemming from a physical impairment, but emphasized that the plaintiff hadn’t alleged that her gender dysphoria resulted from a physical impairment.  As a result, the defendant’s lawyers wrote, DOJ’s avoidance argument wasn’t “credible”.  The plaintiff’s amici—several NGOs that advocate for transgender people’s rights— agreed that DOJ’s position was, in its result, at least consistent with their view that, after the DSM-5, gender dysphoria isn’t a gender identity disorder at all, but a “new diagnosis.”  But if not, the amici added, and if DOJ’s view requires a plaintiff in any particular to prove that his or her gender dysphoria does actually result from a physical impairment, then the court can’t avoid the Equal Protection Clause challenge completely.  That’s because (1) only transgender plaintiffs would bear that burden of proof; (2) that burden would burn a lot of “attorney resources for discovery and the preparation of expert reports and requiring courts to delve into a thicket of medical evidence and opine on etiology, with the attendant risk of different courts reaching differing results in similar cases”; and (3) if the plaintiff couldn’t meet that burden, the court would then have to decide the constitutional issue.  The plaintiff’s lawyers agreed with this view.

    What about the plaintiff’s ADA claim based on perceived disability? First Amended Complaint ¶¶ 36, 53.  The ADA defines “disability” to include cases in which a person is “regarded as” disabled.  42 U.S.C. § 12102(1)(C).  Today, that’s defined to cover a person who suffers discrimination “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity,” id. § 12102(3)—the result of the ADA Amendments of 2008.  So, if the defendant’s alleged illegal conduct had occurred today, maybe DOJ would also say—to make avoidance work—that the GID exclusion doesn’t apply to “regarded-as” ADA claims.  (That is, not even when a defendant-employer treats a person adversely because it thinks (erroneously) that a person has a “gender identity disorder” caused by a physical impairment; or thinks (erroneously, in DOJ’s view) that a person has a “gender identity disorder” caused by a mental impairment; or thinks a person has a “gender identity disorder” but doesn’t know or care whether that condition has a mostly physical or mostly mental etiology.)  But the alleged illegal conduct in Blatt took place before the ADA amendments of 2008.  Back then, the Third Circuit had required that, for a regarded-as claim, the plaintiff’s perceived disability would, if true, count as an “impairment” under the ADA, see Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d. Cir. 2002).

    Maybe we’ll find out soon how DOJ’s second try at avoidance will fare.  Oral argument on the defendant’s partial motion in Blatt is scheduled for this Thursday (Dec. 10).

 

--- Sachin Pandya