The ADA expressly excludes from its coverage “transvestism, transsexualism, … [and] gender identity disorders not resulting from physical impairments….”
Thus, it should be an easy call for a court to dismiss a lawsuit in which an employee, born a male but who identifies and presents as a female, alleges disability discrimination because of her gender identity disorder.
In Blatt v. Cabela’s Retail (E.D. Pa.5/18/17) [pdf], the court denied the employer’s motion to dismiss the employee’s ADA claims, and expressly recognized her gender dysphoria as an ADA-protected disability.
[I]t is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have —such as Blatt’s gender dysphoria, which substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning.
This is but one decision of one court on a preliminary motion to dismiss. Other courts may (and likely will) hold differently in future cases. However, this case is part of a larger trend—as long as Congress continues to drag its feet amending Title VII to protect LGBT employment rights, courts will continue to fill the void. By broadly (and, in my view, incorrectly) interpreting the ADA to achieve its view of a just and fair result, this court broke new ground. It will not, however, be the last court to so rule. Plan and act accordingly with your employees.