A federal judge in Pennsylvania recently found that an employee with gender dysphoria could sue under the Americans with Disabilities Act.  See Blatt v. Cabela’s Retail, Inc., 2017 WL 2178123 (E.D. Pa. May 18, 2017).  Kate Lynn Blatt claimed that she was terminated by Cabela’s because of her sex and disability — gender dysphoria.  Cabela’s asked United States District Court Judge Joseph F. Leeson, Jr. to dismiss the ADA claims.

The ADA’s express language says that the term “disability” does not include “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”  42 U.S.C. §12211 (emphasis added).  And, Ms. Blatt claimed that she was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder.”  Blatt, 2017 2178123 at *2 (emphasis added).

While Ms. Blatt’s claim would appear to be barred by the ADA’s definition of a disability, Judge Leeson refused to dismiss the claim.  He found that the ADA intended to only exclude those people “identifying” with a different gender.  But, gender dysphoria “goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”  Blatt, 2017 2178123 at *2.

Judge Leeson’s opinion appears to be an effort to avoid a constitutional question.  Ms. Blatt claimed that the ADA’s exclusion of gender identity disorders violated her Equal Protection Rights.  In order to avoid that issue, Judge Leeson found that Ms. Blatt was not excluded.  But, in avoiding the constitutional question, Judge Leeson may have extended the ADA beyond its intended scope.  The ADA, and its definition of “disability,” was passed by Congress in 1990.  At that time, the Third Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders merely used the term “gender identity disorder.”  But, in 1994, the Fourth Edition of that Manual replaced the term “gender identity disorder” with the more descriptive term “gender dysphoria.”  Kothmann v. Rosario, 558 Fed. Appx. 907, 908 n.2 (11th Cir. 2014).  Thus, Judge Leeson’s attempt to distinguish between “gender identity disorder” and “gender dysphoria” may be an error based on differences in time and definitions.

Nevertheless, Blatt provides yet another reason for employers to proceed cautiously when disciplining transgender employees.  Under Title VII’s sexual discrimination provisions, employers must be careful to avoid disciplining transgender employees for failure to conform to gender stereotypes.  Discussion on Transgender Protections. Now, employers must also consider whether an employee’s gender dysphoria is a disability and entitled to protection.