Two courts have said yes, but one now says no.
As of this week, we have one dissenting court.
In Doe v. Northrop Grumman Systems Corp., Judge Lynwood Smith of the Northern District of Alabama dismissed an ADA claim where the alleged disability was gender dysphoria. (The plaintiff’s sex discrimination claim under Title VII will be allowed to proceed.)
Section 12211 of the ADA says that certain conditions and “states of being” are not “disabilities” within the meaning of the Act. Among other things, the ADA excludes “transsexualism,” as well as “gender identity disorder” unless the latter results from a physical impairment. That part of the ADA was not amended as part of the ADA Amendments Act, which took effect in 2009.
I’m speculating here, but by using the words “physical impairment,” I assume Congress intended to provide ADA protection to individuals with gender dysphoria as a result of being intersex (for example, having both male and female genitalia, or XXY chromosomes), or possibly as a result of a hormonal condition.
Judge Smith pointed out that in 1990, when the ADA was enacted, “gender identity disorder” was the accepted terminology for what we now call “gender dysphoria.” The term “gender dysphoria” was not adopted by the American Psychological Association until 2013.
The APA describes gender dysphoria as follows:
Gender dysphoria refers to the distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender. Although not all individuals will experience distress as a result of such incongruence, many are distressed if the desired physical interventions by means of hormones and/or surgery are not available. The current term is more descriptive than the previous DSM-IV term gender identity disorder and focuses on dysphoria as the clinical problem, not identity per se.
APA, Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (2013), quoted in the Northrop Grumman decision (emphasis in original).
In other words, according to Judge Smith, “gender identity disorder” and “gender dysphoria” are the same condition with different names. Therefore, gender dysphoria that doesn’t result from a physical impairment is not a “disability” within the meaning of the ADA. The plaintiff did not allege that his gender dysphoria had a physical origin.
Judge Smith summarily refused to follow the decisions to the contrary in Blatt v. Cabela’s (the 2017 case that I posted about, linked above) and Doe v. Massachusetts Dep’t of Corrections (a 2018 decision, also linked above), saying only that they were “not binding on this court” and “not persuasive.”
If the ADA exclusion applies, the next big question is whether it violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The plaintiffs in all three cases made that allegation. The Blatt and Doe courts sidestepped it, and Judge Smith found that the plaintiff had not adequately pled it, which isn’t quite the same as saying that the exclusion is not unconstitutional.
Because the plaintiff’s Title VII sex discrimination claim will go forward, he may decide not to appeal the dismissal of his ADA claim to the U.S. Court of Appeals for the Eleventh Circuit. But depending on which way the Supreme Court goes in the gender identity/Title VII case of R.G. & G.R. Harris Funeral Homes v. EEOC, he might.
We will continue to follow and will keep you posted.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.