Disabilityqueer: federal disability rights protection for transgender people.

• Author: Barry, Kevin M.

The Americans with Disabilities Act (ADA) does not protect everyone. It notably excludes people with Gender Identity Disorder (GID), an impairment involving the misalignment between one's anatomy and gender identity. Many would say this is as it should be- gender nonconforming people are not impaired and so they should not be covered by disability law. But this argument misapprehends the reason that GID was excluded from the ADA in the first place.

GID was excluded from the ADA because, in 1989, a small handful of senators believed that gender nonconformity--like pedophilia, pyromania, and kleptomania-was morally harmful to the community. In the eleventh hour of a marathon floor debate, and in the absence of an organized transgender lobby, the ADA's sponsors and disability rights advocates reluctantly agreed to sacrifice GID and nine other mental impairments in exchange for passage in the Senate. The fact that Congress went out of its way to exclude GID, along with nine mental impairments that involve some harm to oneself or others, sends a strong symbolic message: people with GID have no civil rights worthy of respect. The ADA is a moral code, and people with GID its moral castaways.

In 2008, when Congress decided to expand the ADA's definition of "disability" to protect more people, things should have been different for people with GID. Sadly, they were not. Instead of removing the GID exclusion once and for all, Congress enshrined its moral opposition to people with GID by preserving the exclusion. The ADA's message to people with GID, and to the transgender community more broadly, is now clearer than ever: nearly twenty years after the passage of the ADA, people with GID are still despicable and even dangerous, and therefore undeserving of legal protection. The ADA's moral code remains.

In order to achieve true equality, transgender advocacy must rebut the moral case against transgender people. The ADA should play a prominent role in this project because the ADA's GID exclusion is the moral case against transgender people. The ADA should be righted once more through passage of a modest bill, the "ADA Inclusion Act," which removes GID from the ADA's list of excluded impairments.

1. INTRODUCTION

   Rachel Maddow. Jerry Sandusky. Chaz Bono. Although the ADA Amendments Act of 2008 (ADAAA) expanded the ADA's definition of disability to include medical impairments that are not typically thought of as "disabling," (1) it left intact the exclusion of those who are gay, lesbian, or bisexual, those with pedophilia and other sexual disorders, and those who are transgender. (2) Many will say that this is as it should be.

   Being gay, lesbian, or bisexual, after all, is not a medical impairment. In 1974, the American Psychiatric Association removed same-sex orientation from its standard classification of mental disorders, known as the Diagnostic and Statistical Manual (DSM). (3) Because same-sex orientation is not an impairment, the argument goes, it should not be covered by the ADA. Rachel Maddow, for example, who is openly lesbian and the host of MSNBC's primetime news show, "The Rachel Maddow Show," (4) is excluded from the ADA's definition of disability because she has no medical impairment. The ADA should no more protect her, one might reasonably argue, than it should protect people with brown eyes, short legs, or dark hair. (5) These are characteristics, not impairments, and therefore not the stuff of disability protection.

   By contrast, pedophilia, the sexual attraction to prepubescent children, remains an impairment under the DSM and few would argue that it should not be. (6) But disability coverage for pedophiles is another matter; one might reasonably argue that the ADA should not extend to pedophiles because they threaten the safety of one of our most precious resources--our future. (7) Jerry Sandusky, for example, who is the former defensive coordinator for the Penn State football team and was arrested in 2011 for sexually abusing eight boys over a 15-year period, (8) has a medical impairment alright. He, too, is excluded from the ADA's definition of disability, but for a very different reason than Rachel Maddow. He is excluded because he is morally depraved and therefore undeserving of disability protection. (9)

   Gender Identity Disorder (GID), which involves the misalignment between one's anatomy and gender identity, is a harder case. (10) According to proposed changes to the DSM, which will take effect in 2013, people with GID experience, or are at risk of experiencing, distress if they do not receive the right support, ranging from talk therapy to pharmacological and surgical interventions. (11) The fact that GID remains a listed DSM diagnosis, coupled with the fact that having GID has nothing to do with hurting people, (12) would appear to favor disability coverage under the ADA. But some in the transgender community-echoing the call of gay, lesbian, and bisexual people over thirty years ago--believe that GID is not a mental impairment and therefore has no business being in the DSM. (13) Accordingly, one might argue, GID has no business being in the ADA either. GID sits at the uneasy crossroads of pathology and difference.

   While reasonable arguments can be made for the exclusion of GID under the ADA, the ADA's current exclusion of GID is not a reasonable one. (14) GID is explicitly excluded from the ADA not because people with GID are not impaired (Rachel Maddow), but rather because, in 1989, several members of Congress believed that people with GID were morally bankrupt, dangerous, and sick (Jerry Sandusky). The ADA became a moral code separating the deserving disabled from the subjects of scorn, with people with GID falling squarely into the latter camp. Chaz Bono, for example, a transgender man, and the child of Sonny Bono and Chef, who danced his way into American's living rooms two years ago, is not protected by the ADA. (15) Whether or not one believes that Chaz Bono has an impairment is beside the point--the ADA says that he does have an impairment, but that he, like Jerry Sandusky, is not morally deserving of protection.

   The ADAAA could have changed things for people with GID, but it did not do so. In fact, by changing nearly everything about the definition of disability except the ADA's list of exclusions, the ADAAA appears to ratify the ADA's moral disapprobation of people with GID. Law can sometimes create the very thing it seeks to dismantle, and the ADA is a case in point. By expanding the definition of disability, the ADAAA signaled that nearly everyone, not just those traditionally considered "disabled," should be protected from discrimination based on impairment. The newly amended ADA's scope of coverage is nearly universal. Accordingly, the ADA does not protect "those" people with stigmatized impairments that impose severe functional limitations; it now protects all of us who are treated unfairly based on impairment, whether or not our impairments are typically thought of as disabilities. Like the "Genderqueer" who blur the boundaries between gender's perceived poles of male and female, the newly amended ADA is "disabilityqueer," blurring the line between the nondisabled and the disabled--between the healthy "us" and the unfortunate "them." (16)

   But by maintaining the GID exclusion, the ADAAA cemented GID's last-place position in the hierarchy of mental impairments. Now more than ever, the ADA "disables" people with GID.

   While the ADAAA's preservation of GID's place in the hierarchy of impairments is understandable as a political matter, it is unfortunate. GID was originally excluded from the ADA for moral reasons: "transgender is bad." But times have changed. The transgender rights movement has found its voice. Transgender people have won significant legal battles at the federal, state, and local levels, including battles before the U.S. Equal Employment Opportunity Commission, which ruled in April 2012 that transgender discrimination is "sex" discrimination under Title VII. (17) And Chaz Bono is dancing with the stars. At long last, transgender is becoming good. (18)

   As one scholar recently put it, "[f]ederal law has an important expressive function, especially concerning the messages it sends about disadvantaged groups." (19) While protection of transgender people under existing federal and state "sex" discrimination laws and state "gender identity" discrimination laws is an essential part of making transgender "good," it does not erase the stain in federal disability law that likens people with GID to people who hurt others and burn and steal things. It does not eliminate the fact that federal disability law stigmatizes transgender people. Removing the ADA's intractable GID exclusion should be part of the project of making transgender good. The ADA's definition of disability should be righted once more.

   This Article begins with a brief introduction to the ADA and its comprehensive prohibition of disability discrimination. Next, this Article discusses the ADA's legislative history and the untold back-door deal that resulted in the exclusion of GID. Here, my goal is to unmask, to expose why exactly the ADA protects all physical impairments but only some mental impairments--the ones we pity, not the ones we despise. (20)

   I then turn the clock forward seventeen years to the negotiations that culminated in passage of the ADAAA. I discuss why the Amendments maintained the ADA's GID exclusion despite its broad expansion of the definition of disability, the emergence of a powerful transgender lobby, and growing support for transgender people in popular culture and under state and federal law. (21)

   This Article then looks to the future, and considers what, if anything, ought to be done about the ADA's exclusion of GID. After discussing some likely counter-arguments from the transgender community, this Article concludes that the ADA's definition of disability should be amended to...