The Yale Law Journal

VOLUME
127
2017-2018
Forum

Blatt v. Cabela’s Retail, Inc. and a New Path for Transgender Rights

12 Oct 2017
Kevin Barry and Jennifer Levi

abstract. Since the Supreme Court recognized marriage equality in Obergefell v. Hodges, civil rights advocates have increasingly set their sights on transgender rights as the next legal frontier. Sex discrimination law, though an essential statutory tool, is not the only potential avenue for securing rights for transgender individuals. Another important federal source of protection for transgender people is disability rights law—in particular, the Americans with Disabilities Act (ADA). Disability rights law, unlike sex discrimination law, applies to public accommodations and government services, and also mandates reasonable accommodations. A transgender litigant successfully invoked the protections of the ADA for the first time in the recent case of Blatt v. Cabela’s Retail, Inc., where a federal court ruled that transgender people are not categorically barred from seeking relief under the ADA from discrimination based on gender dysphoria—the clinically significant distress that some transgender people experience. Importantly, the Department of Justice under both the Obama and Trump Administrations has similarly interpreted the ADA to cover such discrimination. This Essay explores why, for over twenty-five years, transgender litigants have not invoked the protections of the ADA—and why they now should. Blatt’s historic holding will reverberate beyond the facts of that case, setting the stage for ADA challenges to a broad range of discrimination against transgender people who experience stigma and bias associated with gender dysphoria.

Since the Supreme Court’s historic decision recognizing marriage equality in Obergefell v. Hodges,1 transgender rights have quickly emerged as one of the most important frontiers for civil rights.2 Transgender individuals’ access to appropriate gender-segregated facilities, particularly restrooms, has taken center stage in this debate.3 On April 19, 2016, in G.G. ex rel. Grimm v. Gloucester County School Board, the Fourth Circuit became the first federal court of appeals to rule that Title IX of the Education Amendments of 1972 prohibits a school from excluding a transgender boy from the boys’ student restroom, relying on agency guidance issued by the Obama Administration.4 Although the Supreme Court vacated the Fourth Circuit’s judgment after the Trump Administration rescinded that guidance,5 other federal courts appear poised to reach the same conclusion on other grounds. The Seventh Circuit, which recently upheld a preliminary injunction allowing a transgender boy to use the boys’ student restroom at his school, noted that the court was “not alone in [its] belief” that Title IX encompasses discrimination against transgender people.6

The legal issue at the heart of these cases centers on whether federal sex discrimination law fully extends to transgender students. Does Title IX (and, by extension, Title VII of the Civil Rights Act and other federal laws prohibiting sex discrimination) provide comprehensive equality guarantees to transgender individuals, as Gavin Grimm argues?7 Or do cultural and societal norms regarding gender justify gaps in the laws’ coverage?8

These are important questions for transgender rights. Although sex discrimination law is an essential statutory tool for securing transgender rights, it is not the only one. Disability rights law—which, unlike sex discrimination law, applies to public accommodations and government services, and also mandates reasonable accommodations—is another important federal source of protection for transgender people.9 In particular, the Americans with Disabilities Act of 1990 (“ADA”), which prohibits discrimination based on “disability” in a broad range of public and private settings,10 has profound implications for the advancement of transgender rights. In a recent landmark case, Blatt v. Cabela’s Retail, Inc.,11 a federal court ruled for the first time that transgender people are not categorically barred from seeking relief from discrimination under the ADA. Importantly, the Department of Justice under both the Obama and Trump Administrations has similarly interpreted the ADA to cover such discrimination.12

This Essay explores why, for over twenty-five years, transgender litigants have not invoked the protections of the ADA—and why they now should. In Part I, the Essay discusses the ADA’s morality-driven exclusion of three conditions associated with transgender people, and how this exclusion has led transgender litigants to eschew disability rights law in favor of sex discrimination protections. In Part II, we turn to Blatt v. Cabela’s Retail, Inc.,13 in which the court held that gender dysphoria—the clinically significant distress that some transgender people experience14 —constitutes a protected disability under the ADA. We also discuss well-intentioned but misguided concerns regarding ADA coverage of gender dysphoria, and why the consensus of the transgender rights community is firmly in support of such coverage. In Part III, this Essay traces a new path forward for transgender rights after Blatt: disability rights protection for transgender people who experience stigma and bias associated with gender dysphoria, including a lack of access to appropriate bathrooms for transgender students,15 refusal of proper uniforms to transgender workers,16 denial of access to proper medical care and gender-appropriate facilities and programs to transgender prisoners,17 and threats of exclusion of transgender patrons from private business establishments.18

I. sex and disability

As clarified by the 2008 amendments to the ADA,19 the statutory definition of disability is extremely broad and, frankly, a misnomer. The word “disability” is commonly associated with medical conditions that disrupt a person’s ability to function—that incapacitate.20 Indeed, that is exactly how “disability” is defined in the Social Security Act, which provides cash benefits to people with medical conditions who cannot work because of those conditions.21 Under the ADA, however, disability means something very different. A person is covered by this law if the person is discriminated against based on a real or perceived medical condition—regardless of how limiting that condition may be.22 A person is also covered if the person has or once had a medical condition that would, in the absence of treatment, be substantially limiting.23

To illustrate the breadth of the ADA’s coverage, consider a person who successfully manages depression with medication and talk therapy, a person with epilepsy who has been seizure-free for decades, a person with diabetes who takes insulin, a person with an anxiety disorder who avoids certain social situations, and a person undergoing surgery for a back injury. They are all covered by the ADA regardless of how or whether their medical condition actually interferes with activities of daily living.24

According to his complaint, Gavin Grimm was “diagnosed by medical professionals as having Gender Dysphoria, which is a serious medical condition characterized by clinically significant distress caused by an incongruence between a person’s gender identity and the person’s assigned sex at birth.”25 Left untreated, gender dysphoria can result in debilitating depression, anxiety, and, for some people, suicidality and death.26 As part of his medically-supervised treatment for gender dysphoria, Grimm underwent hormone therapy, legally changed his name, and lived “as a boy in all aspects of his life,” including, naturally, using the boys’ restroom.27

Though not pleaded in Grimm’s complaint, the ADA might have provided a source of relief separate from Title IX. Under the ADA, Grimm could have alleged that the school board’s policy denied him equal access to benefits provided to his peers who did not have gender dysphoria—namely, the ability to use the boys’ restroom.28 He might also have alleged that the policy had a discriminatory effect on boys with gender dysphoria, singling them out by requiring that they—and no one else—use a separate, non-student-use restroom.29 Lastly, he might have argued that the school had a duty to modify its restroom policy to ensure that transgender boys can use the boys’ restroom and that such a modification would not “fundamentally alter” the educational services provided by the school.30

Gavin Grimm likely did not allege discrimination under the ADA for a simple reason: the ADA explicitly excludes “transvestism, transsexualism...[and] gender identity disorders not resulting from physical impairments.”31 The legislative history of the ADA reveals that these three conditions were excluded due to congressional moral opprobrium, including and especially that of two conservative senior senators, William Armstrong (R-CO) and Jesse Helms (R-NC).32 In support of his proposed amendment excluding gender identity disorder and several other stigmatized medical conditions33 from the ADA, Armstrong expressed concern with “provid[ing] a protected legal status to somebody who has such disorders, particularly those who might have a moral content to them or which in the opinion of some people have a moral content.”34 Helms likewise decried the ADA’s curtailment of an employer’s right to make judgments about employees based on the employer’s “own moral standards”35:

If this were a bill involving people in a wheelchair or those who have been injured in the war, that is one thing. But how in the world did you get to the place that you did not even [ex]clude transvestites?...What I get out of all of this is here comes the U.S. Government telling the employer that he cannot set up any moral standards for his business.... [H]e cannot say, look I feel very strongly about people who engage in sexually deviant behavior or unlawful sexual practices.36

For well over twenty-five years, the Armstrong-Helms amendment effectively closed the door to ADA protections for transgender people, who eschewed disability rights law in favor of sex discrimination protections.

II. blatt v. cabela’s retail, inc. and the importance of ada coverage of gender dysphoria

Although Gavin Grimm understandably did not challenge his discrimination under the ADA, other transgender litigants have done so despite the ADA’s transgender exclusions.37 In 2014, a transgender woman named Kate Lynn Blatt, who was diagnosed with gender dysphoria, experienced discrimination while working at Cabela’s Retail, a private sporting goods store.38 She was required to wear a nametag bearing the name “James” until she provided documentation that her name and gender marker had been legally changed.39 She was required to work in a secluded part of the store.40 She was subjected to harassment by other employees who called her a host of derogatory names, including “ladyboy,” “he/she,” “sinner,” “fag,” and “freak.”41 And she was prohibited from using the female bathroom. After initially suggesting that she use the restroom at a Dunkin’ Donuts across the street, her employer eventually allowed her to use the single-sex “family” restroom at the front of the store.42

In 2014, Blatt sued in federal district court in the Eastern District of Pennsylvania, alleging discrimination under both Title VII of the Civil Rights Act andtheADA.43 When Cabela’s moved to dismiss the ADA claim based on the ADA’s transgender exclusions, Blatt did something that no litigant had ever done before—she argued that the exclusions violate the Equal Protection Clause.44 Driven by “a bare congressional desire to harm” transgender people, Blatt alleged, Congress excluded from the ADA medical conditions closely associated with such people.45 In so doing, Congress deprived transgender people of the unique protections of the ADA (namely, reasonable accommodations) and also stigmatized them as unworthy of civil rights protections.46

In an amicus brief, six state and national transgender rights organizations advanced a separate, statutory argument: the ADA’s exclusion of “gender identity disorders” does not apply to gender dysphoria, which is a distinct diagnosis with physical roots—not a disorder of identity.47 Therefore, amici argued, gender dysphoria is not the equivalent of gender identity disorder as Congress understood it in 1992 or any of the other related conditions excluded from the ADA.

Shortly after this amicus brief was filed, the U.S. Department of Justice under Attorney General Loretta Lynch filed a Statement of Interest that reached the same result as amici, although by slightly different means. Gender dysphoria is not distinct from gender identity disorder, DOJ argued, but emerging science indicates that gender dysphoria results not from a mental impairment but rather from a physical one (i.e., neurological, genetic, and/or hormonal sources).48 Therefore, DOJ argued, gender dysphoria is not excluded from the ADA based on the terms of the statute—i.e., gender dysphoria is a gender identity disorder resulting from a physical impairment.49

For two years, the parties waited. Finally, on May 18, 2017, the court issued a remarkable decision denying Cabela’s motion to dismiss Blatt’s ADA claim.50 The decision is noteworthy for two reasons. First, and most obviously, the decision is the first to hold that gender dysphoria is not an excluded condition under the ADA. Second, the court employed novel analysis to reach this historic result.

Like amici, the court found that “gender identity disorders” are not the same as “gender dysphoria” and, therefore, gender dysphoria is not excluded from the ADA.51 But, unlike amici, the court did not base its decision on the fact that “gender identity disorders” constitute a different, outdated medical diagnosis. Instead, the court concluded that the ADA’s transgender-related exclusions do not encompass any medical conditions associated with being transgender.52

According to the court, the ADA excludes “two distinct categories” of conditions from its definition of disability: “first, non-disabling conditions that concern sexual orientation or identity,” such as “homosexuality” and “bisexuality”; and “second, disabling conditions that are associated with harmful or illegal conduct,” such as pedophilia, pyromania, and kleptomania.53 “Gender identity disorders,” the court reasoned, fall into the first category. “[G]ender identity disorders,” as used in the ADA, “refer to only the condition of identifying with a different gender”—i.e., being transgender.54 Like being gay, lesbian, or bisexual, the court reasoned, being transgender is, by itself, not a medical condition and is therefore not a disability under the ADA.55

Gender dysphoria, by contrast, is a medical condition. “[A] condition like Blatt’s gender dysphoria,” the court concluded, “goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.... [Specifically, gender dysphoria] substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning.”56 Because gender dysphoria has medically significant clinical features, it does not fall into the first category of exclusions with sexual orientation and transgender identity.57 In addition, because gender dysphoria is “not associated with harmful or illegal conduct,” it does not fall into the second category either.58 Accordingly, Blatt’s condition “is not excluded by...the ADA.”59

Interpreting the ADA to exclude gender dysphoria, the court concluded, would have been inconsistent with the ADA’s text by “exclud[ing] from the ADA conditions that are actually disabling but that are not associated with harmful or illegal conduct.”60 Such an interpretation would also have been inconsistent with the ADA’s remedial purpose as indicated by its legislative history, “which reveal[ed] that Congress was careful to distinguish between excluding certain sexual identities from the ADA’s definition of disability, on one hand, and not excluding disabling conditions that persons of those identities might have, on the other hand.”61 Indeed, Congress “specifically rejected amendments” that would have prevented “a person who is gay from receiving coverage under the statute if the person had a disability,” such as HIV/AIDS.62 So, too, with gender identity disorders: Congress did not intend to prevent people who “identify[] with a different gender,” i.e., transgender individuals, from receiving coverage under the statute if the person has a medical condition like gender dysphoria.63

In sum, the court in Blatt recognized two discrete but sometimes related experiences—one of being transgender, the other of having gender dysphoria. Being transgender is, standing alone, akin to being gay or lesbian; it is not a medical condition and, therefore, does not by itself bring a person under the ADA’s protections.64 Gender dysphoria, however, is distinct; it is a quintessentially stigmatized medical condition characterized by clinically significant distress associated with being transgender.65 Importantly, the court recognized that no principled reason exists for excluding transgender people who experience a medical condition associated with that identity from securing protections under the ADA.66

The court’s decision is consistent with contemporary medical standards and represents a major step forward for transgender people. While not all transgender people experience clinically significant distress, the fact that many do should not be ignored—particularly by our civil rights laws.67 The Blatt decision goes a long way in recognizing this, righting a decades-long wrong that deprived transgender people of the opportunity to challenge bias and stigma associated with a medical condition.

The strategy of pursuing disability protections for transgender people has received criticism from some transgender rights advocates.68 Challenges to this approach come in two basic varieties. The first is that, by recognizing gender dysphoria as a medical condition, ADA claims pursued by transgender litigants legitimate the pathologization of transgender identity. This concern ignores the distinction between transgender identity and gender dysphoria. Transgender identity is not a medical condition.69 Gender dysphoria, on the other hand, is a medical condition; it is real, serious, and physically incapacitating, and often can only be ameliorated by medical care.70 It is also a highly stigmatized medical condition that engenders fear and discomfort in others—the very type of condition that Congress had in mind when it passed the ADA.71 Because the ADA was intended to redress prejudice associated with stigmatized medical conditions, people who experience such prejudice ought to pursue these protections, not avoid them.

The second concern is that, unlike sex discrimination law, ADA coverage of gender dysphoria might brand transgender people as incapable of functioning. This concern misunderstands disability rights law. The ADA has always embodied the “social model” of disability: the idea that negative reactions to medical conditions—not the conditions themselves—“disable.”72 For nearly twenty years, the Supreme Court effectively ignored the social model, articulating instead a “medical model” of disability: the idea that disability results from severely limiting medical conditions.73 But in 2008, with tremendous bipartisan support, Congress amended the ADA to clarify its original intent that “disability” should be broadly construed to protect virtually everyone who experiences discrimination based on a medical condition—real or perceived, functionally limiting or not.74 As a result, many treatable medical conditions that would be functionally limiting in the absence of such treatment—including epilepsy, diabetes, major depressive disorder, bipolar disorder, post-traumatic stress disorder, and obsessive compulsive disorder—are now presumed to be disabilities under the amended law.75 Add to this the ADA’s coverage of minor medical conditions that are not typically thought of as “disabilities,” such as skin graft scars, and it is clear that ADA coverage is not tied to an inability to function.76

Given the breadth of the ADA’s definition of disability, there is no reason to resist categorizing gender dysphoria as a disability. Indeed, the continued exclusion of gender dysphoria, along with eight conditions that involve “harmful or illegal conduct,”77 is more likely to exacerbate—not reduce—the stigma associated with gender dysphoria. For these reasons, and notwithstanding well-intentioned concerns, the overwhelming consensus among transgender rights advocates is strongly in favor of ADA coverage of gender dysphoria.78

III. a new path: gender dysphoria discrimination

Blatt marks the beginning of a new way forward toward securing legal protections for transgender people through disability rights law.79 Transgender litigants who have gender dysphoria, who once had gender dysphoria and have successfully treated it (for example, by living part time or full time in their desired gender role, undergoing hormone therapy, having surgery, or some combination), or who are erroneously perceived as having gender dysphoria (i.e., those who do not experience distress but who are transgender)—might now consider bringing ADA claims.80

The ADA, with its distinct structure and scope, is well-suited to combat discrimination against transgender people who have, had, or are perceived as having gender dysphoria, for two reasons. First, unlike sex discrimination law, the ADA defines discrimination to include not only disparate treatment and disparate impact, but also the failure to provide “reasonable accommodations” in the workplace and to “reasonably modify” discriminatory policies, such as those governing restroom usage, dressing, and grooming standards.81 Second, unlike Title VII and Title IX, the ADA is comprehensive; its legal protections extend beyond employment and education to public accommodations and state and local government benefits and services.82

Accordingly, in addition to challenging employment discrimination under the ADA, as Blatt did, transgender litigants may consider challenging gender dysphoria discrimination in a range of other contexts. For example, in November 2016, in Doe v. Arrisi, a woman with gender dysphoria sued the state of New Jersey in federal district court over a state law—shared by a majority of states—that requires proof of gender confirmation surgery in order to change the gender marker on one’s birth certificate.83 Requiring a person with gender dysphoria to undergo medical treatment that is unnecessary, medically contraindicated, or too costly, she argues, not only violates the Due Process and Equal Protection Clauses but also constitutes disability discrimination under the ADA.84 Significantly, after New Jersey invoked the ADA exclusion as grounds for dismissing the plaintiff’s ADA claim,85 the Department of Justice under Attorney General Jeff Sessions filed a Statement of Interest supporting ADA coverage for gender dysphoria and reiterating its position in Blatt that gender dysphoria that results from a physical impairment is not excluded by the ADA.86

Transgender litigants may also consider bringing ADA claims to challenge: (1) state prison policies that deny transgender prisoners access to proper medical care and gender-appropriate facilities and programs, as a formerly incarcerated transgender woman in Connecticut has done;87 (2) laws like North Carolina’s H.B. 288 as well as the actions of private businesses, which deny people with gender dysphoria access to gender-appropriate facilities, including bathrooms;89 and (3) policies like those at issue in G.G. that deny people with gender dysphoria access to gender-appropriate facilities and other services in public and private schools.90

In addition to the ADA, transgender litigants may consider invoking the protections of two other federal disability rights statutes that contain transgender exclusions: the Rehabilitation Act of 1973, which prohibits disability discrimination by federal agencies and recipients of federal funds, and the Fair Housing Act, which prohibits disability discrimination in housing sales, rentals, and financing.91Because the Rehabilitation Act excludes from its definition of “disability” the same conditions as the ADA,92 the interpretation of the latter by the Blatt court, Blatt amici, and the Trump Administration itself should apply with equal force to the former. Gender dysphoria is therefore not excluded from the protection of the Rehabilitation Act.93 This means that adverse action taken against transgender people by federal agencies and recipients of federal funds (including state agencies that receive federal funding) may well constitute disability discrimination in violation of the Rehabilitation Act.94 It also means that the Rehabilitation Act’s affirmative action requirements for people with disabilities should apply to individuals with gender dysphoria.95

Conclusion

For over twenty-five years, the ADA deprived transgender people of its protections by excluding “gender identity disorders.” As a result of this exclusion, transgender litigants have not invoked the ADA’s protections, relying instead on sex discrimination law.96 But this is changing. In Blatt v. Cabela’s Retail, the Eastern District of Pennsylvania held that being transgender is not a medical condition, but gender dysphoria is—and it is therefore not excluded from the ADA. For the first time ever, a court has ruled that people who have, had, or are perceived as having gender dysphoria are covered by the ADA. The Department of Justice under both the Obama and Trump Administrations, moreover, has reached the same result—albeit by different reasoning.

Blatt’s historic holding will reverberate beyond the facts of that case, setting the stage for ADA challenges to a broad range of discrimination against transgender people. In the employment and education contexts, the ADA will supplement the protections provided by sex discrimination law through its unique requirement of reasonable accommodation. Where sex discrimination law does not reach, such as in the prisoner rights and public accommodations contexts, the ADA can fill important gaps, providing a remedy to many of the problems created by anti-transgender laws and policies. The door is also open for transgender litigants to begin challenging gender dysphoria discrimination under the Rehabilitation Act and the Fair Housing Act. Notwithstanding the well-intentioned concerns of some transgender rights advocates, disability rights coverage of gender dysphoria does not pathologize transgender identity or brand transgender people as incapable of functioning. Rather, it provides a legal remedy that should never have been denied: comprehensive anti-discrimination protection for a serious, stigmatized medical condition.

Time will tell how far this new path of legal protection will take transgender people, but one thing is for sure: we are at last moving in the right direction. Disability rights law is finally catching up with medical science to protect the lives and health of transgender individuals.

Kevin Barry is a Professor of Law at Quinnipiac University School of Law and Co-Director of the law school’s Civil Justice Clinic. He represented the disability community in support of their successful effort to amend the Americans with Disabilities Act in 2008. Jennifer Levi is a Professor of Law at Western New England University School of Law and the Director of the Transgender Rights Project at GLBTQ Legal Advocates & Defenders. Levi was co-counsel in the Massachusetts and Connecticut marriage cases that paved the way for marriage equality for same-sex couples nationally. An earlier version of this Essay was delivered at the Harvard Civil Rights-Civil Liberties Law Review Symposium on Transgender Rights in 2017. The authors are grateful to Kate Lynn Blatt and her attorneys, Brian Farrell, Sidney Gold, and Neelima Vanguri, for their outstanding advocacy, and to Kylar Broadus, Erwin Chemerinsky, Christine Duffy, Shannon Minter, Sarah Russell, Scott Skinner-Thompson, Harper Jean Tobin, Ilona Turner, and Thomas Ude for thoughtful advice and support.

Preferred Citation: Kevin Barry & Jennifer Levi, Blatt v. Cabela’s Retail, Inc. and a New Path for Transgender Rights, 127 Yale L.J. F. 373 (2017), http://www.yalelawjournal.org/blatt-v-cabelas-retail-inc-and-a-new-path-for-transgender-rights.