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to Section One | to Arts & Entertainment
posted Friday, November 20, 2015 - Volume 43 Issue 47
Trans exclusion in ADA may be unconstitutional, DOJ says
Section One
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Trans exclusion in ADA may be unconstitutional, DOJ says

by Mike Andrew - SGN Staff Writer

The provision in the Americans with Disabilities Act (ADA) excluding Transgender individuals may be unconstitutional, the U.S. Department of Justice (DOJ) said on November 16, and courts should ignore it to avoid legal problems.

The ADA protects people with disabilities from discrimination and requires employers - among others - to accommodate their disabilities.

However, the law explicitly excludes people with gender identity disorder (GID) except for those whose GID results from 'physical impairments.' DOJ now says that Transgender people should be able to pursue ADA claims 'because a growing body of scientific evidence suggests' that being Transgender may have a physical origin.

DOJ commented in the case of Blatt v. Cabela Retail, in which a Trans employee is suing her former employer for discrimination and harassment under the ADA and Title VII of the Civil Rights Act.

Kate Lynn Blatt charges that she was forced by her employer to use the men's bathroom at work, and that her colleagues called her 'ladyboy,' 'freak,' and 'sinner.' Cabela's refused to reasonably accommodate her, Blatt says, when the store denied her use of an appropriate restroom and the ability to wear a nametag with her correct name.

DOJ has already found that the Title VII protection against discrimination on the basis of sex protects Trans employees, and it now says that the ADA requires that employers accommodate Trans employees by allowing them to use appropriate restrooms and wear correct nametags.

In their brief, Blatt and her attorneys have mounted a head-on challenge to the constitutionality of the ADA's exclusion of Transgender people.

They cited the U.S. Supreme Court's 2013 decision in United States v. Windsor, which struck down DOMA, saying that the ADA exclusion injures Trans people.

'Similar to the Supreme Court's admonition in United States v. Windsor ... the exclusion injures the very class of people the ADA seeks to protect,' according to the brief. They also urge U.S. District Judge Jeffrey Schmehl to find the exclusion unconstitutional.

'DOJ's position creates a path forward for transgender people who need reasonable workplace accommodations, which is a good thing,' said Jennifer Levi, director of the Transgender Rights Project at Gay and Lesbian Advocates & Defenders (GLAD).

'It also concedes that unless the court interprets the statute in some way to allow protections for transgender people under the ADA, there is a constitutional problem.'

'This is the next logical progression of the LGBT movement,' said Jillian Todd Weiss, a professor at Ramapo College's School of Social Science and Human Services, who is also working on a case in Texas brought against Saks Fifth Avenue by a Transgender employee.

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