A Narrow Escape: Transcending the GID Exclusion in the Americans with Disabilities Act.

• Author: Payne, Taylor
• Position: Gender identity disorders

1. INTRODUCTION

   The Americans with Disabilities Act ("ADA") was implemented in 1990 and is hailed as a pivotal piece of legislation that protects the civil rights of individuals with disabilities. (1) Driven by the prejudice of certain influential legislators, transgender individuals were purposefully excluded from the ADA's protection. (2) This exclusion--commonly referred to as the "GID Exclusion"--ensured that "transsexualism" and "gender identity disorders not resulting from physical impairments" were not considered a "disability" under the ADA. (3) The GID Exclusion effectively produced a categorical bar for transgender plaintiffs seeking legal recourse under the ADA despite the fact that many transgender individuals experience clinically significant stress known as Gender Dysphoria, a recognized and serious medical condition that can substantially limit major life activities. (4)

   For almost two decades following the passage of the ADA, the GID Exclusion was left virtually unchallenged. Moreover, transgender plaintiffs who tried to invoke the ADA's protections were unsuccessful--that is until 2014, when Kate Lynn Blatt ("Blatt") brought suit in federal court. (5) Blatt, a transgender woman with Gender Dysphoria, (6) alleged she was either covered under the ADA or the ADA's exclusions were unconstitutional. (7) Blatt's suit marks one of the few times the GID Exclusion has been challenged and the only time in which a court has held the ADA does not categorically bar transgender plaintiffs from protection. (8)

   This Note discusses the groundbreaking ruling of Blatt v. Cabela's Retail, Inc. and its potential impact on transgender individuals in the public and legal spheres. Part II of this Note provides the pertinent facts and holding from Blatt. Part III discusses the history of the ADA and the impetus for the GID Exclusion. Part III then turns to the current legal landscape for transgender individuals at the national and state level. Part IV details the instant decision and explores the U.S. District Court for the Eastern District of Pennsylvania's legal reasoning and holding. Part V addresses arguments for and against the holding of the instant decision, detailing positions argued by the United States of America and amici curiae in the case.

   Ultimately, Part V argues that Blatt should be recognized as a momentous decision. Not all transgender individuals have Gender Dysphoria (9) and therefore they may not always be able to invoke the protections found in the ADA on that basis. (10) However, for transgender individuals who do experience Gender Dysphoria, Blatt provides hope that decades-old prejudice enshrined in federal legislation can be overcome through reasonable statutory interpretation, resulting in much needed legal protections for a community that still faces "severe and pervasive discrimination in nearly every aspect [of life]." (11)

2. FACTS AND HOLDING

   In 2014, Blatt filed suit against her former employer, Cabela's Retail, Inc. ("Cabela's"), for impermissible sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and impermissible discrimination on the basis of disability under the ADA. (12) Blatt sought an award of damages, injunctive and declaratory relief, attorney's fees, and other relief. (13) In response, Cabela's filed a motion to dismiss Blatt's ADA claim. (14) Ultimately, Cabela's motion to dismiss was denied. (15)

   Cabela's is a retail business that specializes in outdoor equipment and clothing. (16) In September 2006, Cabela's hired Blatt as a seasonal stocker. (17) One year before she was hired, Blatt was diagnosed with Gender Dysphoria, (18) sometimes referred to as Gender Identity Disorder ("GID"). (19) Blatt was assigned male at birth, but she identifies as female. (20) Blatt engaged in hormone therapy, grew her hair long, dressed in female attire, and changed her name in order to conform to her female gender. (21)

   As part of her employment at Cabela's, Blatt was required to attend an employee orientation at which she dressed in women's clothing and used the women's restroom without any problem. (22) Following orientation, Blatt requested a female uniform (23) and began wearing one when she did not receive a response to her request. (24) Blatt also requested a nametag that read "Kate Lynn" as a reasonable accommodation for her Gender Dysphoria, but Cabela's Human Resources Director denied her request. (25) Blatt's complaint alleged that, in retaliation for requesting the female nametag, the Human Resources Director forced her to wear a nametag that read "James." (26) Additionally, the Human Resources Director commanded all other employees to refer to Blatt as "James" or they would be fired. (27) Blatt also alleged that the Human Resources Director told her she could receive a nametag reading "Kate Lynn" only after she legally changed her name and gender marker. (28) The Human Resources Director also prohibited Blatt from continuing to use the women's restroom until her gender marker was legally changed. (29) Moreover, Blatt was often secluded and forced to work alone, unlike other non-transgender employees who often worked in teams. (30)

   Approximately one month after she was hired, Blatt was called in for an abrupt meeting with one of Cabela's shift supervisors who accused Blatt of "failing to pull her weight" and suggested she consider quitting. (31) Following this meeting, Blatt was subjected to numerous derogatory and offensive comments by fellow employees, including being called "'he/she,' 'ladyboy,' 'fag,' 'sinner,' and 'freak.'" (32) Employees also asked offensive questions about Blatt's body. (33) Blatt reported the discrimination against her to a different Cabela's supervisor ("Supervisor Bowers"), who reported the discrimination to Cabela's upper management, including the Human Resources Director. (34) However, neither upper management nor the Human Resources Director attempted to investigate the matter or take steps to prevent further discrimination. (35)

   Blatt applied for a promotion approximately two months after she was hired and at various points thereafter in the course of her employment. (36) A Cabela's supervisor told Blatt that the corporate office had specifically or-dered him not to promote Blatt even though he thought Blatt was "well-qualified" for the promotion. (37) After applying for one promotion, Blatt overheard a maintenance manager tell Supervisor Bowers that Blatt was a "confused sicko" and that he would not interview Blatt "under any circumstances." (38)

   Even after Blatt legally changed her name and gender marker, Cabela's Human Resources Director refused to allow her access to the women's restroom, (39) citing the unfounded belief that Blatt would pose a danger to other women. (40) Supervisor Bowers told Blatt that the staff wished her to use a gender-neutral restroom at a Dunkin' Donuts across the street. (41) When Blatt refused, Cabela's reluctantly allowed her to use a family unisex restroom at the front of the store, which was still significantly farther away than the employee restrooms. (42) After Blatt legally changed her name, Cabela's issued her three incorrect nametags (43) before finally providing her with a nametag that correctly stated her name. (44)

   According to Blatt's complaint, in February 2007, Blatt "amicably approached" a maintenance technician and asked about her cleaning schedule. (45) In response, the technician yelled at Blatt and blamed her for disrupting the schedule. (46) Blatt was subsequently fired for allegedly threatening the technician's son during the altercation. (47) Blatt did not know the technician had a son and denied making any such threats. (48) Blatt claimed Cabela's articulated reason for terminating her "was[ ] pretextual and her employment was actually terminated based on her sex, her actual and/or perceived disability and/or record of impairment, and in retaliation for opposing unlawful discrimination in the workplace and requesting a reasonable accommodation for her disability." (49) After she was fired, Blatt filed suit against Cabela's alleging unlawful discrimination in violation of Title VII and the ADA. (50)

   "The ADA makes it unlawful for a covered employer to discriminate against any 'qualified individual on the basis of disability.'" (51) To bring suit under the ADA, a plaintiff must show that "(1) [they (52) are] disabled within the meaning of the ADA, (53) (2) [they are] a qualified individual under the ADA, (54) and (3) [they] suffered an adverse employment action because of [their] disability." (55) "Disability" under the ADA includes "physical or mental impairments that substantially limit one or more major life activities." (56) Blatt asserted her Gender Dysphoria substantially limited one or more of her major life activities including, but not limited to, reproducing, social and occupational functioning, and interacting with others. (57) Thus, Blatt alleged her Gender Dysphoria met the criteria of a disability and entitled her to protection under the ADA. (58)

   Cabela's filed a motion to dismiss Blatt's ADA claim, asserting that Blatt failed to state a claim upon which relief could be granted. (59) Cabela's argued the explicit text of the ADA--in particular [section] 12211, which excludes from the definition of disability "gender identity disorders not resulting from physical impairments" (60)--applied to Blatt's Gender Dysphoria and precluded her from bringing a viable ADA claim. (61) Blatt argued her condition was covered under the ADA or, in the alternative, that if her condition was excluded from the scope of the ADA's coverage, then the GID Exclusion violated her right to equal protection as guaranteed under the Fifth Amendment of the United States Constitution. (62)

   The U.S. District Court for the Eastern District of Pennsylvania, Judge Joseph F. Leeson Jr. presiding, narrowly construed the text of the ADA's GID Exclusion and held that...