Department of Justice Weighs in on Transgender Exclusion in Americans with Disabilities Act

GLAD Statement

November 17, 2015 - Yesterday the Department of Justice (DOJ) weighed in on the transgender exclusion written into the Americans with Disabilities Act (ADA), urging the court to ignore the exclusion in order to avoid a constitutional problem.

When the landmark law passed in 1990, it explicitly excluded from its protections people with Gender Identity Disorder (GID) except for those whose GID results from "physical impairments." DOJ said that transgender people should be able to pursue ADA claims "because a growing body of scientific evidence suggests" that being transgender may have a physical origin.

"DOJ's position creates a path forward for transgender people who need reasonable workplace accommodations, which is a good thing," said Jennifer Levi, director of the Transgender Rights Project at Gay & Lesbian Advocates & Defenders (GLAD). "It also concedes that unless the court interprets the statute in some way to allow protections for transgender people under the ADA, there is a constitutional problem."

DOJ was commenting in the case Blatt v. Cabela's Retail, in which Kate Lynn Blatt, a transgender employee of the retailer Cabela's brought a discrimination claim against the store under both Title VII of the Civil Rights Act, on the grounds that Cabela's discriminated against her based on her sex; and the ADA, on the grounds that Cabela's refused to reasonably accommodate Ms. Blatt when the store denied her use of an appropriate restroom and the ability to wear a nametag with her correct name.

Blatt is represented by Sidney L. Gold, Neelima Vanguri and Brian Farrell of Sidney L. Gold & Associates. GLAD is providing ongoing consultation and, along with Law Professor Kevin Barry of Quinnipiac University, also filed an amicus brief in the case arguing that by maintaining the discriminatory exclusion, the ADA perpetrates the very thing it seeks to dismantle: "the prejudiced attitudes and ignorance of others" and the 'inferior status' that people with disabilities – or those "regarded-as" by others as having a disability – occupy in society."

A hearing is scheduled at the federal district court in Eastern District of Pennsylvania on December 10.

Through strategic litigation, public policy advocacy, and education, Gay & Lesbian Advocates & Defenders works in New England and nationally to create a just society free of discrimination based on gender identity and expression, HIV status, and sexual orientation.