Is Distress Over Your Assigned Gender a Disability?

by Obermayer Rebmann Maxwell & Hippel LLP

District Court Narrowly Construes the ADA to Allow a Transgender Employee to Pursue Discrimination and Retaliation Claims Pennsylvania District Court Judge Joseph F. Leeson recently ruled that the Americans with Disabilities Act’s (“ADA”) provision excluding “gender identity disorders” from ADA coverage should be construed narrowly, and held that a transgender employee’s disability discrimination and retaliation claims arising from gender dysphoria are actionable under the ADA. Specifically, Judge Leeson ruled that the ADA’s “gender identity disorder” exclusion applies only to the “non-disabling condition” of an inability to identify with an assigned gender, but that certain “disabling conditions” (e.g. gender dysphoria) that may affect individuals with gender identity disorders are disabilities under the ADA.

The plaintiff, Kate Lynn Blatt, is a transgender employee that worked at Cabela’s from September of 2006 until her termination in February of 2007. In addition to being transgender, Blatt suffers from gender dysphoria, a condition that includes distress, anxiety and/or depression due to an inability to identify with an assigned gender. Blatt claims that gender dysphoria negatively impacted her ability to interact with others, thereby limiting her social and occupational functioning. In addition to being forced to wear an inaccurate name tag, Blatt alleges that she was not permitted to use the female restroom. She also alleges that she was subject to slurs and taunts from coworkers.

In her amended complaint, Blatt also asserts claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. Cabela’s sought dismissal of the ADA claims on grounds that Section 12211 of the ADA states that “gender identity disorders” are not disabilities under the ADA. Cabela’s did not seek dismissal of the Title VII claims. In her brief in opposition to Cabela’s partial motion to dismiss, Blatt asserted that the exclusion of gender dysphoria from ADA coverage violates her equal protection rights.

In his opinion denying Cabela’s partial motion to dismiss, Judge Leeson set forth that the constitutional-avoidance canon barred him from addressing the constitutionality of Section 12211 so long as an alternate interpretation of the provision was “fairly possible.” Judge Leeson opined that gender dysphoria is distinguishable from the “gender identity disorders” specifically identified in Section 12211. In particular, he reasoned that Section 12211 can be broken down into two distinct categories: 1) non-disabling conditions concerning sexual orientation and/or gender identity (e.g. bisexuality and homosexuality); and 2) disabling conditions associated with harmful or otherwise illegal conduct (pedophilia, pyromania, and kleptomania). According to Judge Leeson, if Section 12211 is understood to exclude disabling conditions such as gender dysphoria, “the term would occupy an anomalous place in the statute, as it would exclude from the ADA conditions that are actually disabling but that are not associated with harmful or illegal conduct.”

Likewise, Judge Leeson noted that a narrow construction of Section 12211 is consistent with Third Circuit precedent that requires the interpretation of the ADA as “a remedial statute designed to eliminate discrimination. . .” Accordingly, he concluded “it is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, and not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have…”

Although Judge Leeson’s decision is not precedential, it may serve as a guidepost for similar cases pending in other District Courts. As a result, employers should be aware that transgender employees who assert claims of gender identity discrimination may alternatively pursue claims under the ADA. Employers should follow the EEOC’s guidance regarding LGBT workers in order to insulate themselves from similar claims in the future. As always, HR Legalist encourages employers with questions or concerns to consult experienced legal counsel.

Significant research and writing assistance provided by Ajay Ravindran, a 2L at Duke University Law School

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Obermayer Rebmann Maxwell & Hippel LLP | Attorney Advertising

Written by:

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.