Legal cross-dressing: sexuality and the Americans with Disabilities Act.

• Author: Malti-Douglas, Fedwa
• Position: Sexuality and the Law

"To retain respect for sausages and laws one should not see them in the making." (1)

The United States government wants its citizens to know that the Americans with Disabilities Act of 1990 ("ADA") (2) is about more than eliminating physical barriers and creating opportunities for employment. It is part of a larger project of breaking down stereotypes, dispelling myths, and quieting fears. (3) Ironically, the ADA, in its application and jurisprudence, has probably done more to perpetuate stereotypes, myths, and fears than it has to eliminate them. The fears and stereotypes fostered by the ADA are not primarily about disabilities and their effects. Instead, these fears revolve around sexuality. How do handicaps connect to sexualities? They are linked through an anxiety of shifting marginalities.

In addition to their attempts to order behavior or to balance interests and rights, legal texts and statutes reflect our obsessions and fascinations. Even when a legal text is associated with an individual, a specific court, or a legislative or regulatory body, it is the product of collective processes and reflects collective values. A piece of complex legislation like the ADA is a mine of hidden subtexts. These are most visible when the legal areas touch the areas of gender and sexuality. Michel Foucault and others have amply shown us that mental structures or mentalites can lead us down unexpected paths. (4) Literary and cultural critics have made us aware that this is the case with artistic and cultural production. The law is no exception, as both legal specialists and literary critics have amply demonstrated: Robert Ferguson, (5) Richard Posner, (6) Stanley Fish, (7) or Peter Brooks, (8) to name but four. (9) The imaginary is as critical in the law as it is elsewhere in our intellectual universe. It seems impossible to make sense of the Americans with Disabilities Act without examining the mentalities it embodies and the place of both the statute and its jurisprudence in the contemporary American imaginary.

Restricting ourselves to a legal canon does not by any means, however, imply a lack of awareness of the field of disability studies, whose existence is already decades old. (10) Nor does this restriction imply a lack of interest in the innumerable testimonials by disabled personages, ranging from the physically handicapped to the mentally iii. These touching narratives may enrich the legal world and they may complement it, but they will not alter the contents of the ADA statute that we shall be examining. (11)

Reading a legal text is a way to enter the American psyche. This is certainly true for a work like The Starr Report, the referral to the United States House of Representatives by Independent Counsel, Kenneth W. Starr. (12) I attempted to demonstrate in The Starr Report Disrobed that the work of the Independent Counsel was not merely a legal text but was also a cultural text that reflected our gender obsessions and anxieties at the time of its appearance. (13) This is equally true for different types of trial documents such as closing arguments. These can be crafted as literary masterpieces designed to sway a jury while also providing us with a singular look at American history and literature. (14)

Why should it not be the same for legal acts emanating from the United States Congress? These are often perceived by their readers as lacking in narrative complexity. Is it perhaps that these legal constructions, when viewed closely, are carefully laid out as fairly dry outlines of the law, rather than as stories and narratives? Certainly, this is the case with the ADA, signed into law by President Bush in 1990. (15)

The ADA was the child of a strange union, that of the Civil Rights Act of 1964 with the Rehabilitation Act of 1973. The Americans with Disabilities Act is much more than what it purports to be. The Act was designed "to establish a clear and comprehensive prohibition of discrimination on the basis of disability." (16) Seen this way, the ADA links itself directly to the Civil Rights Act, as the word "discrimination" indicates.

The various titles in the ADA include employment, public services, and public accommodations and services operated by private entities, as well as miscellaneous provisions. (17) Attention will be directed to the miscellaneous provisions of the ADA since these represent a category that is not clearly defined, unlike the sharply delineated provisions on employment. This will be followed by discussion of the Compliance Manual of the United States Equal Employment Opportunity Commission ("EEOC") (18) and the landmark Supreme Court decision in Bragdon v. Abbott.. (19)

1. THE STATUTE

   Sections 507-512 of Title V are notable because they are the place in the ADA where disability and sexuality meet. (20) Although these two topics might seem an odd pair, they are linked within the statute in a way that prioritizes heteronormativity.

   The first indication that the sexual is on the mind of the ADA drafters appears in [section] 508, which reads: "SEC. 508. TRANSVESTITES. For the purposes of this Act, the term 'disabled' or 'disability' shall not apply to an individual solely because that individual is a transvestite." (21)

   The mere presence of this "section" should stop us in our tracks. A section is a major division of the ADA. The statute consists of five titles and each title contains between five and twenty sections. Sections frequently go on for several pages. When they are very short, they are usually devoted to an important issue, such as [subsection] 244 and 246, which are only a few lines each, and which set the dates for legal requirements. (22) Section 508 is but two lines for the sole purpose of excluding transvestites--not sexual deviants, not child molesters, not homosexuals, just transvestites. This is an extraordinary privilege for cross-dressers. No other group of individuals is isolated in this way and given this kind of attention in the ADA. One might think that America was threatened by an imminent plague of transvestism. Strengthening the argument for the highly significant inclusion of this section is its complete gratuitousness. Textually redundant, it is legally superfluous since the point is already made elsewhere in the statute. Somehow, without warning, we have moved from the disability arena to that of sexuality within the text of the ADA.

   It is not merely the presence of "transvestites" that signals that more is at play here than legal disability. Literary critics have long been aware of the paradigmatic and syntagmatic relationships in a text. The syntagmatic relationship exists between an element and those that precede it or follow it in a series. A paradigmatic relationship exists between elements that can be substituted or that can replace one another in a series, generally because they have the same function. A series can be either a text, a cultural practice, or something linking the two. In a sentence, for instance, words are syntagmatically related to the words that precede and follow them. They are paradigmatically related to the words that can replace them: the verb in "thou shalt not kill" with that in "thou shalt not commit adultery." Similar rules apply in a cultural practice such as a formal dinner. Syntagmatically, the beef Wellington follows the crab salad as the main course follows the appetizer. Paradigmatically the beef Wellington could be replaced by a leg of lamb, just as the crab salad could be replaced by a stuffed artichoke. In masculine attire (to return to cross-dressing), the collar relates syntagmatically to the tie. Paradigmatically, the tie could be knit, traditionally striped, patterned, or tied in a bow.

   Syntagmatically, the transvestites in [section] 508 are neatly tucked between [section] 507, "Federal Wilderness Areas," and [section] 509, "Coverage of Congress and the Agencies of the Legislative Branch." (23) What is the relationship of these three sections? The section on "Federal Wilderness Areas" is the more provocative in this highly unusual textual syntagmatic relationship.

   What does the "Federal Wilderness Areas" section of the ADA provide? It states:

   (a) Study. The National Council on Disability shall conduct a study and report on the effect that wilderness designations and wilderness land management practices have on the ability of individuals with disabilities to use and enjoy the National Wilderness Preservation System as established under the Wilderness Act (16 U.S.C. 1131 et seq.).

   (b) Submission of Report. Not later than 1 year after the enactment of this Act, the National Council on Disability shall submit the report required under subsection (a) to Congress.

   (c) Specific Wilderness Access.

   (1) In general. Congress reaffirms that nothing in the Wilderness Act is to be construed as prohibiting the use of a wheelchair in a wilderness area by an individual whose disability requires use of a wheelchair, and consistent with the Wilderness Act no agency is required to provide any form of special treatment or accommodation, or to construct any facilities or modify any conditions of lands within a wilderness area in order to facilitate such use.

   (2) Definition. For purposes of paragraph (1), the term "wheelchair" means a device designed solely for use by a mobility-impaired person for locomotion, that is suitable for use in an indoor-pedestrian area. (24)

   Section 509, "Coverage of Congress and the Agencies of the Legislative Branch," reiterates the Senate's commitment to Rule XLII of the Standing Rules of the Senate and extends some of the provisions of the ADA to the House of Representatives. (25) The section covers employment and includes remedies for failing to hire, discharging, or discriminating against an individual "on the basis of such individual's race, color, religion, sex, national origin, or state of physical handicap." (26)

   So what are transvestites doing wedged between these complicated...