Should Gender Dysphoria be a Federally Protected Disability?

A lawsuit that aims to have gender dysphoria covered under the Americans with Disabilities Act could lend protection—and stigma—to the trans community.

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May 26 2017, 5:54pm

Kate Lynn Blatt outside a gender-neutral restroom. REUTERS/Shannon Stapleton

I know firsthand what it's like to struggle with gender dysphoria at work, and how aggravating it can be. When I was a closeted transgender woman, sometimes I'd only make it part way through a workday before my mental state broke down under the pressure. It could be a simple comment that would set me off—a customer or coworker saying "good man" or "sir"—but even less overt triggers could be devastating. I called out of work often. I once attempted suicide on my lunch break, before somehow gathering myself and finishing my shift. My dysphoria was undoubtedly difficult to work through while attempting to build a career, to say the least—but I never thought it should be classified as a disability.

Yet that question—should gender dysphoria be protected from employer discrimination under the Americans with Disabilities Act (ADA)?—is at the heart of a lawsuit brought by Kate Lynn Blatt, a transgender woman from Plottsville, Pennsylvania, against her former employer, the outdoor retailer Cabela's.

Gender dysphoria is defined by the American Psychiatric Association as "conflict between a person's physical or assigned gender and the gender with which he/she/they identify." Between 2006 and 2007, Blatt worked at a Cabela's store in Hamburg, Pennsylvania, and during that time, she alleges she faced pervasive and harrowing employee discrimination. She was forced to wear name tags with the male name she was assigned at birth, for example, and wasn't allowed to use the women's restroom. That alleged mistreatment, Blatt said, worsened her gender dysphoria to a debilitating degree.

Her suit is a direct challenge to the constitutionality of one of the clauses of the ADA, which explicitly excludes transgender people from protection. Cabela's lawyers asked a Pennsylvania judge to dismiss the case outright, but last week, he ruled that Blatt's suit could move forward, making hers the first case allowed to bring such claims to court. The news is huge, if only because it creates legal standing for future cases similar to Blatt's. And its implications go far beyond that.

Why doesn't the ADA cover gender dysphoria and discrimination against trans employees already? Because when the law was created in 1990, it included language excluding "transvestism, transsexualism" and "other sexual behavior disorders" from being defined as a disability—all thanks to the late, notoriously bigoted North Carolina senator Jesse Helms. Those exclusions were "based on myths that have long since been debunked," the National Center for Transgender Equality wrote in a blog post following the news. And now, "many trans people have an additional legal option when they're advocating for their rights—one that applies to employment, public accommodations, and government services," they wrote.

Blatt's ruling "doesn't immediately open the door to discrimination claims outside of the court where this claim was brought," said Jennifer Levi, who directs the Transgender Rights Project for Gay and Lesbian Advocates and Defenders, an LGBTQ legal rights organization, and helped draft an amicus brief for the Cabela's suit. "But it provides a legal basis for other people to bring similar claims." That means that trans people who have or are perceived as having gender dysphoria now have standing to bring claims under the ADA. However, the issue isn't so clear cut, and many trans rights advocates are concerned this classification will add the additional stigma of disability to an already very marginalized population.

Within the trans community itself, there remains significant debate over whether being trans should be considered a mental disorder, and whether transitioning itself should be medicalized. Blatt's case differs from other anti-discrimination laws, because it treats gender dysphoria as a medical condition to protect trans people from discrimination. But doing so inherently invites complicated questions—does it invite the idea that there's something wrong with trans people? What about trans people who don't experience dysphoria? How do you account for those who chose not to "treat" their dysphoria?—that evade easy answers.

Arguments against the medicalization of transition have more to do with stigma than substance, however. Gender dysphoria is indeed still listed in the American Psychological Association's DSM-V, the most current listing of mental illnesses, and the diagnosis is key to justifying insurance coverage of transition care, such as hormone replacement therapy and genital reassignment surgery.

As a trans woman, I worry about the longterm effects of linking disability to transgender rights. I don't see myself as disabled, despite gender dysphoria having had a real, measurable impact on my career. Levi explained that such hesitation is common, and stems from a misinterpretation of disability law. "There are some programs like the Social Security Disability Insurance program, which is a cash handout if you're unable to work, but that's totally different than the reference to 'disability' in the ADA," she told me, "where you're only protected if you are capable of working and able to do the job, but you're limited from doing the job because of the stigma associated with the medical condition."

But the social stigma against those with mental illnesses is often leveraged against the transgender community by those who wish to disparage them. From trans exclusionary radical feminists to conservative evangelical Christians, enemies of trans rights have painted trans people as "delusional" and "gender confused" and have sought to make transitioning and life in general more difficult for the trans population.

According to Levi, it's this very stigma that directly led to last week's ruling. "If you accept the premise that being transgender may be a medical condition for some people, then for those people who face discrimination because of that medical condition, the ADA is the appropriate civil rights statute," she said. In Blatt's case, for example, being forced to wear a nametag with her legal (male) name, even after requesting a nametag with her more appropriate female name, resulted in Blatt experiencing increased dysphoria. It negatively affected her job performance—just as if she had been denied a similar accommodation for a different disability covered under the ADA.

For Levi, gaining legal protection for gender dysphoria under the ADA goes beyond trans legal rights—it's essential to destigmatizing the very existence of trans people in society. "Gender dysphoria is the quintessentially stigmatized medical condition for which the ADA was adopted in the first place," she said, "and the idea is not to continue the stigma by abandoning a law like that—it's to try to destigmatize the condition by integrating people more into the workplace and into society."

Transgender people deserve to transition in peace. The decision to transition is immensely personal, and trans people shouldn't have to be afraid of uprooting their lives to live their truths. If anything, in the ongoing fight for trans equality, last Thursday's court ruling will give the trans community another shield with which to protect themselves from discrimination, despite the negative social stigma that generally surrounds disabilities. In the end, every little bit helps.

Follow Katelyn Burns on Twitter.

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