Recently, we reported on a decision from the Seventh Circuit Court of Appeals which extended Title VII protection to cover sexual orientation. More recently, a federal court judge sitting in Allentown has held that gender dysphoria is a disability covered by the Americans with Disabilities Act (“ADA”).
In Blatt v Cabela’s, No. 5:14-cv-04822 (E.D. PA May 18, 2017), the Plaintiff alleged that she had been diagnosed with gender dysphoria, which, inter alia, she claimed was a disability in that her condition substantially limited her major life activities of interacting with others, reproducing and social and occupational functioning and that Cabela’s had discriminated against her, failed to accommodate her and retaliated against her because of her disability.
Cabela’s filed a Motion to Dismiss the ADA claims on the basis that §12211 of the ADA, 42 U.S.C. §12211, excludes numerous conditions, including gender identity disorders from ADA protection.
Judge Leeson, relying on the Third Circuit’s Opinions in Disabled in Action of Pa v Se. Pa. Transp. Auth., 359 F.3d 199 (3d Cir. 2008) and Bonkowski v. Oberg. Indus., 787 F.3d 190 (3d Cir. 2015) that remedial statutes should be broadly construed, determined that he could achieve that result by narrowly construing §12211. While admitting that Cabela’s reading of gender identity disorder was consistent with both the definition found in the American Psychiatric Association’s Statistical Manual of Mental Disorders and the legislative history of §12211, the Court pointed to the fact that the legislative history included statements to the effect that Congress did not intend to exclude discrimination based on conditions such as AIDS which might affect those with a gender identity disorder.
Referring to that as creating an “anomaly,” he decided to “resolve” it by reading §12211 narrowly “to refer to only the condition of identifying with a different gender, not to encompass . . . a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling” and denied the Motion to Dismiss.
Because it arose in the context of a Motion to Dismiss, where all of the allegations of the Complaint must be taken as true and construed in the light most favorable to the Plaintiff, the decision’s significance is limited to holding that §12211’s specific exclusion of gender identity disorders from ADA protection is to be read as narrowly as possible so that any symptom or condition which goes beyond simply identifying with a different gender may be covered under the ADA if it is disabling in that it substantially limits a major life activity. Whether Ms. Blatt can establish that her alleged symptoms meet that standard has not been decided.
