Sunday, May 21, 2017

Duffy on Blatt

DuffyChristine Duffy (Senior Staff Attorney, ProBono Partnership, photo left) has provided this guest post on Blatt v. Cabela’s Retail, Inc.

Seventeen months after oral argument in Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014), Judge Joseph Leeson issued a six-page decision on whether a person suffering with gender dysphoria is covered by the ADA.  Judge Leeson said “yes.”  The opinion is at .

Judge Leeson agreed with the DOJ’s 11/16/15 Second Statement of Interest (SSOI), that the court should avoid the equal protection argument made by Blatt (and earlier by me in Chapter 16 of Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide).  Sachin Pandya [previously] discusse[d] the DOJ’s SSOI.

DOJ relied on Chapter 16 for the proposition that “‘the burgeoning medical research underlying [gender dysphoria] points to a physical etiology.’”  Judge Leeson agreed with DOJ that the ADA must be read liberally and the ADA exclusions must be read narrowly.  DOJ argued that “the [Gender Identity Disorder (GID)] Exclusion should be construed narrowly such that gender dysphoria falls outside its scope.”

Judge Leeson reached the result sought by Blatt and DOJ, but did so in a different way.  Instead, Judge Leeson held that a person with gender dysphoria is no different from a person with a gay, lesbian, or bi sexual orientation.  Being LGBT in and of itself isn’t a disability for purposes of the ADA.  Rather, it is the associated conditions that such a person might have, such as HIV or depression, that are clearly protected by the ADA.  Judge Leeson cited in support Senator Harkin’s statement, during the Senate’s single day of debate on the ADA bill, that while homosexuality isn’t a disability, a gay person with HIV would be protected.  

Judge Leeson effectively moved the GID language from 42 U.S.C. §12211(b)(1), which excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” from the protections of the ADA, to §12211(a), which provided that “[f]or purposes of the definition of ‘disability’ . . . , homosexuality and bisexuality are not impairments and as such are not disabilities under [the ADA].”  (Note that “transsexualism” was a type of GID in DSM-III-R (1987), which was the version of the DSM in effect when the ADA was debated and passed.  It would seem to follow that Judge Leeson would similarly move transsexualism to §12211(a).)

While Judge Leeson is correct that being a gender-affirmed and gender-diverse person (the nonpejorative way of referring to “transgender” people that I used throughout the GISO treatise) is not a disability, similar to the way that being gay, lesbian, or bi is not a disability, for purposes of the ADA that isn’t the way the ADA is written.

The legislative history of the ADA is replete with derogatory comments toward people who are gay/lesbian/ transgender/transsexual/transvestites. They were deemed unworthy of the protections of the ADA.  However, by the time of the passage of the ADA, Congress carved out only gays, lesbians, and bis from the moral scorn that would be enacted into law.  As I explain at page 16-40 of the GISO treatise:

Two leading proponents of the Senate bill, Senators Harkin and Kennedy, made it clear that although they did not agree with the Armstrong amendment, they accepted it as a political compromise so that the last significant hurdle to passage of the bill was overcome.  They also made it clear that there was no need to include homosexuality and bisexuality as exclusions because they are not disabilities under any medical standards.   According to Ruth Colker, a professor at the Moritz College of Law at The Ohio State University, “with the right-wing clamoring about the ‘sodomy lobby,’ there was no room in which to argue that [the transvestism and transsexualism] exclusions were harmful and degrading.  The best that the gay rights community was able to achieve was to take ‘homosexuality’ and ‘bisexuality’ out of the sentence that listed ‘sexual behavior disorders.’ This was not much of a victory.” [Footnotes omitted]

Senators Armstrong, as well as the equally fervent Senator Helms, used DSM-III-R to justify the proposed sexual behavior disorders exclusion.  They misread—more likely purposely distorted—DSM-III-R to include GIDs and transsexualism as “sexual disorders.”  The six exhibits at the end of Chapter 16 graphically show, in clear detail, the history of GIDs and homosexuality in the eight iterations of the DSM.  The harm caused by the ADA spread to numerous states that thereafter enacted similar ADA exclusions.

Judge Leeson’s interpretation of the ADA corrects the injustice perpetuated by the Senate’s failure to take the time to understand DSM-III-R.  The sexual behavior disorders exclusion was added to the ADA legislation at the last moment, around 10:00 p.m., near the end of a 14-hour debate day that the Senate had with respect to the bill.  These disorders were among a very long list of conditions—including homosexuality, bipolar disorder, borderline personality disorder, delusional disorder, depressive neurosis, disruptive behavior disorders, phobias, psychotic disorders, and stress disorders—that Senators Armstrong and Helms identified during the debate and wanted to exclude from the ADA.  Senator Harkin’s admission that evening was most telling: “Well, obviously I am not familiar with these disorders.”  135 Cong. Rec. S10,753 (daily ed. Sept. 7, 1989).

However, Judge Leeson could have reached the same result in Blatt in at least three different ways short of ruling that the GID exclusion is unconstitutional (which it clearly is in view of the Supreme Court’s decisions in Windsor and Obergefell (where Justice Kennedy’s opening sentence reads: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”) and subsequent lower courts’ decisions extending those holdings to cases involving gender identity).

First, Judge Leeson could have allowed the case to proceed to trial for the presentation of medical evidence that GIDs inherently result from physical impairments.  As mentioned above, the medical evidence now clearly supports this conclusion.

Second, Judge Leeson could have agreed with Blatt, DOJ, and me that “gender dysphoria,” the new diagnosis in DSM-5 (2013), is not a GID and thus is not excluded under the ADA.

Third, Judge Leeson could have simply held that other medical conditions a gender dysphoric person has are protected by the ADA.  Judge Leeson effectively did that by rewriting the ADA.  
At pages 16-83 to -85 of the GISO treatise, I explain the third approach as follows:

Individuals with a GID, whether or not resulting from physical impairments, may have other disabilities that are protected by the ADA and the Rehabilitation Act.  As Senator Harkin made clear during the discussion of the amendment that added the sexual behavior disorders exclusion to the ADA, “this amendment is narrowly focused.  That is, if a person exhibits only a sexual behavior disorder, that person is not a disabled person under this act and cannot bring a cause of action for discrimination based on that disorder. Of course, this provision cannot be used as a pretext for discrimination based on other disabilities.”  For example, if an individual with a GID has cancer or HIV and is discriminated against because of the cancer or HIV, this person would be protected by the ADA (and the Rehabilitation Act).

As discussed earlier [in this chapter], the medical community is beginning to treat gender dysphoria as a physical condition with possible secondary psychiatric overlays, such as depression and anxiety.  Coming out as gender affirmed, gender diverse, or as having a sexual orientation other than heterosexual can be very stressful.  People risk losing their families, including spouses and children, their jobs, their homes, everything they cherish to live as their true selves. Individuals going through other life-changing events, such as divorces and catastrophic illnesses, may face similar challenges.  These challenges often lead to depression, anxiety, and other non-GID psychiatric conditions.  Adverse actions by employers premised on actual or perceived depression or anxiety would be actionable under the ADA and the Rehabilitation Act.

A 2012 study found that individuals with gender dysphoria have psychological distress not from the dysphoria but from the stigma they confront from society at large.  This is not surprising given that children who are gender diverse are subjected to elevated levels of exposure to physical, psychological, and sexual abuse.  “Being transgender is a quintessentially stigmatic condition that has engendered fear and discomfort in others wholly separate and apart from the effect that being transgender has on any one person’s life.”  The 2011 Report of the American Psychiatric Association Task Force on Treatment of Gender Identity Disorder observed that “[a]dults with gender identity concerns have also often experienced stigmatization or victimization related to gender variant appearance or behavior, or on the basis of actual or presumed sexual orientation . . . .  In fact, some authors have concluded that such stigmatization largely accounts for mental illness among individuals with GID.”  As a result of the stigma, referred to as “gender-related abuse” or “interpersonal abuse,” those authors found that more than 50 percent of gender-affirmed women have had lifetime major depression (which is almost three times higher than the national average) and lifetime suicide ideation (more than three times higher than the national average); 35 percent plan their suicides (ten times higher than the national average); and nearly 30 percent actually attempt suicide (seven times higher than the national average).  The 2013 edition of the DSM recognized this, observing that “[g]ender dysphoria, along with atypical gender expression, is associated with high levels of stigmatization, discrimination, and victimization, leading to negative self-concept, increased rates of mental disorder comorbidity [(such as anxiety and depressive disorders)], school dropout, and economic marginalization, including unemployment.”  The stress, anxiety, depression, and/or suicidality, arising from the abuse—and not from the gender dysphoria—are protected disabilities under the ADA and the Rehabilitation Act.  [Footnotes omitted.]

In the end, and without applying equal protection analysis, Judge Leeson effectively reached the same result.  Gender-affirmed and gender-diverse people now have case law holding that they have the same protections under the ADA that all other people with secondary medical conditions have when dealing with social stigma/victimization and life changing events, such as depression, anxiety, and eating disorders.  Gender identity, like sexual orientation, is neutral.  It’s the societal reaction to those innate conditions that potentially could cause secondary medical issues.

One can only hope that that the EEOC will now get off the fence and use the ADA as a tool for protecting individuals who are discriminated against because they have gender dysphoria or are perceived to mentally disabled because they are “transgender” or “transsexuals.”  See EEOC Won't Argue Transgender Bias Violates Disability Law, 34 DLR B-1 (Feb. 22, 2016).

As a side note, in training sessions and in the GISO treatise, I encourage employers not to use the words “transgender” or “transsexuals” in the workplace because “transsexual” is generally considered pejorative and “transgender” may well suffer the same fate and is considered offensive already by some gender-affirmed/gender-diverse employees.  The ADA’s GID exclusion, as well as how the DSM treated GIDs prior to 2013, greatly contributed to this problem.  Employers are better off simply using the concept of “gender identity.”


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