Identity or condition? The theory and practice of applying state disability laws to transgender individuals.

• Author: Chung, Jeannie J.

Jean Doe was a 17-year-old transgender youth when she brought suit against the New York City Administration for Children's Services in New York Supreme Court. (1) She had been in and out of foster homes since the age of nine, and had a troubled history of "violent altercations" in many of the foster homes in which she had been placed throughout these years. (2) Her latest placement was in the Atlantic Transitional Foster Facility, an all-male facility for short-term placement of foster children who are in the care of New York City's Administration for Children's Services. (3) Upon her arrival at Atlantic Transitional, the director of the facility expressly prohibited her from expressing her gender identity by wearing "female attire," although she still could wear "scarves, 'nails,' brassieres, and enhancers." (4) When Jean Doe moved for a preliminary injunction, Atlantic Transitional tried to avoid liability by broadening its policy's reach to the rest of the facility, forbidding all residents from wearing skirts or dresses. (5) Undeterred, Doe brought a lawsuit against the facility, alleging gender discrimination, violations of her First Amendment to free expression, and disability discrimination. (6) The court ultimately found for Doe solely on the disability discrimination claim and mentioned nothing about the other two claims in its opinion. (7)

Doe v. Bell is illustrative of the difficulties transgender advocates have had in bringing gender discrimination claims on behalf of their clients, as well as their relative success in using state disability anti-discrimination laws to garner protection for their clients. Cases that recognize gender discrimination laws as inclusive of transgender individuals, have changed the legal landscape for transgender individuals, such as the recent D.C. Circuit case of Schroer v. Billington, which held that a transgender plaintiff had been discriminated against in employment on the basis of sex under Title VII of the 1964 Civil Rights Act. (8) In many cases over the past two decades, advocates have demonstrated the efficacy of state disability antidiscrimination claims as applied to transgender individuals. Although federal law expressly excludes transgender individuals from the protected class of persons with disabilities, (9) many states do not follow suit. Moreover, at least one State court used the federal exclusion to show that the absence of this exclusion in that State's disability laws clearly demonstrated the State legislature's intent to actively include transgender individuals under these laws. (10)

Unsurprisingly, the use of state disability antidiscrimination laws to claim protection for transgender individuals has been controversial. (11) Some transgender advocates, have noted that the word "disability" often invokes images based on medically-centered views of disabled people in which an individual's "disability" is an illness to be cured. (12) They further point out that the modem disability rights movement has instead embraced a social model of disability, in which "disability" is not inherent to the individual person, but. arises from an environment that assumes only able-bodied people live in it. (13) These advocates look favorably upon the social model of disability and believe that it should be applied to claims involving disability discrimination against transgender individuals. (14)

Other transgender advocates who oppose the medicalization of transgender identity worry that the use of state disability laws as applied to transgender discrimination cases might perpetuate a problematic reliance on medicalization to exercise legal rights and protections for transgender individuals. (15) While these advocates also support a social model of disability, they recognize that courts by and large have rejected an application of the social model of disability to transgender individuals, instead focusing heavily on medical constructions of transgender identity to decide transgender discrimination cases brought under state disability laws. (16) Further, these advocates observe that courts' reliance on the medicalization of transgender identity impacts transgender individuals who cannot access transgender-affirming health care, such as low-income people, people with disabilities, and people of color. (17)

Much of the scholarship in this area has explored the applications of state and federal disability law to transgender individuals and the theoretical and policy arguments for and against using these laws to fight transgender discrimination. Other works discuss the medical construction of transgender identity and its effects on transgender individuals, especially low-income people, people with disabilities, and people of color. (18) This Article surveys state statutes and state cases to date under and in which transgender plaintiffs have brought discrimination claims using disability laws, and analyzes how courts and administrative agencies have applied these laws to these individuals in practice. As discussed in this Article, most jurisdictions that have adjudicated these claims have applied a medical model of disability to the transgender individual, a method that tends to pathologize the transgender plaintiff with its emphasis on the physical and mental "abnormalities" that constitute the transgender "condition." The very few courts and administrative agencies that have attempted to apply the social model of disability have, with one exception, done so only by outlining in general terms the kind of stigma that transgender individuals experience. This Article argues that this general stigma alone cannot be evidence of the social model and that to fully apply the social model of disability to transgender individuals, courts must take the extra step of detailing how the stigma associated with transgender individuals actually disabled the specific transgender plaintiff. Moreover, the social model's efficacy in alleviating transgender discrimination is questionable, since its application to transgender individuals may encourage a characterization of transsexuality as a "condition" as opposed to, for example, an "identity" or a "status" and may also shift the focus away from these individuals' very real health concerns.

Part I of this Article explores the history and meaning of the medical and social models of disability. Part II explains what it means to apply the medical or social model of disability to transgender individuals. Part III analyzes state cases in which advocates have brought transgender discrimination claims using state disability anti-discrimination statutory schemes. This analysis demonstrates how courts and administrative agencies have applied these laws in practice to transgender plaintiffs, as well as categorizes the extent to which courts and administrative agencies have applied the medical or social models of disability. Drawing upon the observations in Part III, Part 1V addresses concerns with using state disability anti-discrimination laws to protect transgender individuals. Lastly, Part V examines the various strategic options available to litigators who decide to employ state disability anti-discrimination laws to advocate on behalf of their transgender clients.

1. The Medical and Social Models of Disability

   Prior to the modem disability rights movement, which gained momentum in the 1970s in both the United States and Great Britain, an understanding of disability based on a medical model was prevalent in both policy and practice. 19 This model saw disability as an illness growing out of the individual, and one that the individual, or a caretaker, should feel compelled to remedy; as a result, medical and rehabilitation professionals as well as charity organizations exerted a great deal of influence over disabled individuals. (20)

   The medical focus on disability "led to the wholesale medicalization of disabled people." (21) Doctors played a prominent role in the care and treatment of a disabled individual, for example by performing surgery after a medically traumatic event or diagnosing an individual's specific disability. (22) However, many choices often left to doctors were choices that a disabled person could have made on his or her own, such as "assessing driving ability, prescribing wheelchairs, selecting education provision and measuring work capabilities." (23) Doctors and rehabilitation professionals focused on "normalizing" disabled individuals so that they could integrate into able-bodied society; this strategy emphasized the disabled individual's lack of autonomy and independence over body and will. (24) For example, rehabilitation professionals referred to disabled people as "patients," and then as "consumers," as if their identities were inextricably intertwined with those two terms. (25) Moreover, post-World War II international resolutions on the treatment of disabled persons largely focused on the goals of preventing future disability and rehabilitating disabled individuals so that they could better participate in society. (26) Indeed, "as pity, tragedy, and medical diagnosis/treatment entered the picture, the novelty and mystery of disability dissipated. Explicit voyeurism stopped being socially acceptable except when controlled by the medical establishment." (27)

   During this time, disabled individuals were also subjected to a notion of disability centered upon "the idea that disabled people are childlike, dependent, and in need of charity or pity." (28) For example, the judge in In re Adoption of Richardson (29) characterized two deaf parents wishing to adopt a non-deaf child with disabilities as "poor unfortunate people." Taken to the other extreme, especially after medical remedies such as the polio vaccine in the 1950s injected a "we-shall-overcome-disability" attitude throughout society, many disabled individuals "were expected to be doing anything [they] had to do, even if it meant collapsing at the end of...