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First transgender discrimination case tochallenge ADA’s constitutionalityJanuary 27, 2015 10:00 AM
By Saranac Hale Spencer / The Legal Intelligencer
In the summer of 1989, U.S. senators debating theAmericans with Disabilities Act excluded behavior theydeemed immoral from the ADA’s protections, including“transvestism, transsexualism, pedophilia, exhibitionism,voyeurism, gender identity disorders not resulting fromphysical impairments, or other sexual behavior disorders,”according to the text of the law.
That portion of the ADA hasn’t been challenged until now.
Kate Lynn Blatt, a transgender woman who was fired from
her job at Cabela’s, filed a discrimination suit last summer making claims under both the ADA andTitle VII of the Civil Rights Act, which is more often used in cases like this one.
Ms. Blatt, in a suit she filed against her employer, said she was forced to use the men’s bathroom atwork, and that her colleagues called her “ladyboy,” “freak” and “sinner.”
She and her lawyers filed a brief detailing a headon challenge to the constitutionality of the ADA’sexclusion of transgender people in the same week that Pennsylvania Gov. Tom Wolf announcedthat he had chosen a transgender woman to serve as the state physician general and PresidentBarack Obama included transgender people in a passage of his State of the Union addressremarking on Americans’ respect for human dignity.
“This is the next logical progression of the LGBT movement,” said Jillian Todd Weiss, a professor atRamapo College’s School of Social Science and Human Services who is also working on the highprofile case in Texas brought against Saks Fifth Avenue by a transgender employee.
Over the past 15 years, laws like Title VII barring discrimination based on sex emerged as the
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1/27/2015 First transgender discrimination case to challenge ADA’s constitutionality | Pittsburgh PostGazette
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primary route to fight injustice for transsexual people, said Ilona Turner of the Transgender LawCenter in California. Over the years, courts have developed strong precedent in favor of applyingsex discrimination laws to transgender cases.
In the few cases brought by transgender people that have included ADA claims, those claims havebeen quickly disposed of by the courts because of the clear exemption included in the law, Ms.Turner said.
The primary argument that Cabela’s had made in its bid to dismiss the ADA claims in Ms. Blatt’scase is the exemption. Susan Guerette of Fisher & Phillips in Radnor, who is representing Cabela’s,couldn’t be reached for comment.
Referring to the trend toward sex discrimination laws for transgender discrimination cases, GregoryNevins of Lambda Legal in Atlanta said, “It’s been more a matter of strategy in the past,” sincethose laws had developed a good track record in the courts.
The lawyers at Sidney L. Gold & Associates in Philadelphia decided to take on the question of theADA’s constitutionality because there are people who have a serious medical condition, who aredisabled under the law, but can’t bring a claim under the ADA because of its exclusion, said BrianFarrell, who is representing Ms. Blatt with Neelima Vanguri and Sidney L. Gold.
They leaned on the U.S. Supreme Court’s 2013 decision in United States v. Windsor — whichgutted the federal Defense of Marriage Act by finding its definition of marriage, which excludedsamesex couples, as unconstitutional and set in motion a domino effect that toppled dozens ofstates’ versions of DOMA, including Pennsylvania’s.
“Similar to the Supreme Court’s admonition in United States v. Windsor ... the exclusion injures thevery class of people the ADA seeks to protect,” according to the brief, urging U.S. District JudgeJeffrey Schmehl of the Eastern District of Pennsylvania, who just recently took his seat on thebench, to find the exclusion unconstitutional.
Also like the Windsor case, in which the U.S. Department of Justice declined to defend DOMA, theGold & Associates lawyers are hoping that the attorney general will decide not to defend the ADA’sexclusion of transgender people.
Last month, Attorney General Eric Holder issued a memo officially directing the DOJ to take theposition in litigation that Title VII protects transgender people. And in July, Mr. Obama signed anexecutive order prohibiting federal contractors from discriminating based on sexual orientation orgender identity.
Saranac Hale Spencer can be contacted at 2155572449 or [email protected]. To read morearticles like this, visit www.thelegalintelligencer.com.
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