In Bending Gender: Disability Justice, Abolitionist Queer Theory, and ADA Claims for Gender Dysphoria, D Dangaran argues that pursuing coverage for Gender Dysphoria in the Americans with Disabilities Act (ADA) is a practical tool to achieve trans movement goals. As they explain in greater detail, the ADA excludes certain diagnoses (e.g., transvestism, transsexualism, gender identity disorder, active substance use disorder) from the definition of “disability.” Since the ADA passed, some of these diagnoses are no longer used, and new diagnoses, namely Gender Dysphoria, have emerged. Lawyers have successfully sought ADA coverage for Gender Dysphoria in employment (ADA Title I) and public accommodations (ADA Title II) cases. I focus this essay on expanding Dangaran’s discussion of critiques. Setting aside my concerns about the viability of this litigation strategy, I respond to Dangaran’s essay by discussing my responses to these questions: even if we “win,” what do we lose? What do marginal wins cost and who pays?
I argue that lawyers should not pursue ADA coverage of Gender Dysphoria. This strategy disregards our community’s long history of fighting for self-determination and of resisting expanding state control, medicalization, respectability, and reformist reforms. Even though I am a white, multiply-disabled transmasculine person and might benefit from Gender Dysphoria incorporation more than many others (because the ADA has disproportionately benefited white men), I know from my personal, professional, and organizing experience that none of us will benefit from what Gender Dysphoria incorporation requires. When raising claims for ADA inclusion, lawyers willingly risk expanding psychiatric control and medical legitimacy, entrench biological essentialist tropes and racialized gender norms, collapse disability and trans identities, and divert resources to impact litigation instead of into community organizing and legal services. Considering the horrific anti-trans onslaught trans people are facing, pursuing strategies that risk expanding harmful systems and that divide our community is both impractical and ineffective.
Lawyers pursuing ADA coverage of Gender Dysphoria have emphatically argued that this strategy is particularly beneficial for incarcerated trans people. Thirty years of ADA litigation has resulted in improvement in physical access but has also potentially exacerbated inequitable conditions for people with disabilities. I agree with Dangaran that carceral spaces are uniquely harmful and debilitating; however, my work has taught me that the ADA is wholly insufficient to combat ableism and structural inequity, especially in prisons and jails. I have spent years working with incarcerated trans people with disabilities at Disability Rights California, where I founded the Trans Advocacy Project, and at Disability Rights Washington, where I worked with the Trans in Prison Justice Project. I founded and run Trans Beyond Bars at the Prison Law Office, where I work with and represent thousands of incarcerated trans people, disabled and nondisabled, across California prisons and county jails. People with disabilities who are incarcerated experience abuse in carceral spaces and face significant barriers when trying to get reasonable accommodations, including mobility devices, hearing aids, sign language interpretation, and access to programs. Incarcerated trans people experience violence, discrimination, and abuse from staff and other detainees alike at alarmingly disproportionate rates. I deeply understand the impulses motivating fellow advocates and scholars who are searching for new legal strategies to alleviate these grievous harms. But incarcerated trans people desperately need more than what the ADA can give, and the severity of their situation demands imagining beyond limited legalistic frameworks that are already failing our people.
I. Expanding Psychiatric & Medical Legitimacy
Both psychiatry and medicine have historically and consistently pathologized gender variance and sexual difference. In 1918, the National Committee for Mental Hygiene published The Statistical Manual for the Use of Institutions for the Insane, the Diagnostic & Statistical Manual’s (DSM) precursor. This manual labeled sexual and gender differences as “Psychoses with Constitutional Psychopathic Inferiority,” meaning that such differences were caused by physiological differences. Such pathologization continued in subsequent versions of the DSM. Despite scientists coining “intersexuality” to describe how sexual differentiation was a continuum and not binary in 1917, by the 1950s, doctors developed the “Optimal Gender Policy” which advised doctors to perform genital surgery on infants based on the length of their phallus to binarize genitalia via coercive surgical intervention.
Alongside the shifting pathologizations of gender and sexual variance, doctors also began to study and treat certain types of gender variance. In the 1960s, prominent universities launched clinics specializing in gender identity and medicine and developed the first set of clinical guidelines (now called “standards”) to determine who deserved treatment, reduce legal liability, and legitimate the professionalization of trans medicine. The criteria and their concomitant rationales are largely the same today.
In 1979, medical professionals established the first professional medical organization focused on trans care, which was followed by the DSM adding “transsexualism” as a diagnostic code in 1980. The consolidation and institutionalization of trans medicine had contradictory effects: on one hand, it increased access to medical care for some types of transsexual people (e.g., those who could afford private medical care, psychiatric evaluations, travel to and from specialty clinics; those who were properly gendered by cisnormative standards; those who were sexually normative in their gender identities), but it also legitimized the exclusion of those who exhibited other types of gender variance (e.g., those who were poor or uninsured; those who were perceived as outside of the binary or not sufficiently masculine or feminine; those who were labelled as sexually deviant or homosexual).
Throughout the mid- to late-twentieth century, some gender variant people embraced biological explanations of gender difference and some engaged in medical transition, while many others were literally too queer to get care and contested both the pathologization of gender variance and the “entrenchment of a system of rigorous medical gatekeeping.” At an early conference about trans identity, Susan Stryker interrupted another attendee and proclaimed, “I’m not sick.” At the 1993 conference for the organization now called the World Professional Association of Transgender Health (WPATH), trans attendees critiqued the hierarchy of medical vs. non-medical attendees by wearing hats that read, “We’re all Professionals Here.” At a subsequent conference, one participant called for the association “to acknowledge and serve the many kinds of gender-variant people rather than dividing the world into transsexuals and nontranssexuals,” receiving a standing ovation from some attendees.
Lawyers seeking Gender Dysphoria incorporation in the ADA obscure the trans movement’s fragile and contested relationship to medicalization and ignore the disability rights movement’s limited analysis of materialist political economy and racial capitalism. Disability activist and scholar Marta Russell argued that the ADA is not a liberatory model because the ADA seeks to regulate both disabled and non-disabled bodies within the labor market by expanding legal ways of exploiting disabled/non-disabled bodies while shrinking the social safety net. According to Russell, the ADA did not seek to end various types of discrimination, but rather to legalize certain forms of discrimination. She based her critique in a materialist analysis that traced the development of medical and care industries as features of the U.S. political economy that prioritized extracting capital through institutions providing care and medicine –– or, in her words, the “money model of disablement.” This model, contrasted against the social and medical models, highlights how even those who are unable to labor “are used to shore up U.S. capitalism by other means.” Jasbir Puar, an American Studies scholar, extends Russell’s argument beyond the nation state and argues that the ADA’s definition of disability “is already anchored as a category in whiteness, in imperial formations.” For Puar, even intersectional analyses of disability in the U.S. framework are insufficient because disability’s “genealogical formation is so wedded, already, to the very forms of violence that it portends to be addressing.” Puar’s analysis asks those in the U.S., both how whiteness, legalism, and capitalism structure “disability” and also how such formations are exported and enforced colonially elsewhere.
Advocates for Gender Dysphoria incorporation distinguish the new diagnosis from prior diagnoses by claiming that Gender Dysphoria represents a major reform in psychiatry because it “depathologizes” the identity and instead, pathologizes the subjective distress some people experience. Yet, as discussed above, Gender Dysphoria’s “genealogical formation” is undergirded by the physical and epistemological violence it purports to address. Current efforts by the state and lawyers alike to recuperate trans identity via medicalization and legal protection should not be seen as an expansion of rights. Instead, such efforts should be understood to expand the capacity of regulatory formations, including the ADA, to account for new populations (e.g., dysphoric individuals included in the ADA’s ambit). Lawyers advocating for Gender Dysphoria incorporation vindicates the DSM’s regulatory function and diagnostic power by claiming that psychiatric categorization can be transformed into a vehicle for legal recognition and inclusion. But such arguments ignore widely acknowledged critiques that the DSM is neither reliable nor scientifically valid, that diagnostic labels can be harmful and result in lifelong stigma, and that the DSM is not an “objective tool” but rather represents a constellation of norms and behaviors gathered and formalized primarily by white, cisnormative, well-educated, and privileged psychiatrists.
When considering both the history of gender pathologization and the political economy of disablement, Gender Dysphoria incorporation in the ADA should be understood as a strategy that vindicates the status quo. It legitimates the use of psychiatric regulation and judicial authority to determine who is deserving of legal cover and who can be excluded, even if they experience discrimination or ableism. Arguments for incorporation frame some people as “deserving” (e.g., those with Gender Dysphoria diagnoses) and other people as “undeserving” without meaningfully contesting the exclusionary logic.
II. Entrenching Biological Essentialism and Racialized Gender Norms
Those seeking to incorporate Gender Dysphoria in the ADA have distinguished Gender Dysphoria from Gender Identity Disorder by arguing that Gender Dysphoria has a “physiological basis” that causes mental and physical impairments. Specifically, lawyers have made –– and courts have affirmed –– three distinct arguments about dysphoria’s physiological etiology: First, trans people’s endocrine systems cause an “atypical interaction of sex hormones and the brain and, as a result, a person with Gender Dysphoria is born with circulating hormones inconsistent with their gender identity.” Second, this implies that trans people have different “brain composition with respect to the white matter of the brain, the cortex (central to behavior), and subcortical structures.” Third, Gender Dysphoria occurs at higher rates in families, implying that there is a genetic basis for trans identity and/or Gender Dysphoria. Advocates also argued that Gender Dysphoria is both a physical and mental impairment because it limits an individual’s capacity to reproduce, care for one’s self, interact with others, and occupationally function, and courts have focused on how Gender Dysphoria causes “negative self-esteem, which manifests itself in anxiety, depression, and suicidality.”
These claims—rooted in biological essentialism, neuroessentialism, genetic reductionism—have been dubiously repeated in other legal arguments (e.g., gender identity is an immutable characteristic), and such claims largely serve to obscure the colonial and racial history of essentialist ideology. Maria Lugones, a feminist philosopher, argues that Western, essentialist accounts of sexual dimorphism are always already racialized because colonizers are sexually dimorphic, while colonized populations are cast as “threateningly ambiguous.” Essentialism, then, “erases this differential allocation of gender across colonial lines.” Gender Dysphoria incorporation, especially when premised on biological essentialist claims, will result in racialized outcomes, which will be exacerbated by the well-studied racial supremacy of both medicine and psychiatry. Lastly, these essentialist claims also fail to reflect how many trans people understand themselves. Trans people in the U.S. have organized against such essentialist tropes, including the “born this way” narrative. Uplifting harmful, inaccurate tropes will never provide a vehicle for meaningful social organizing for trans liberation.
Lawyers pushing for Gender Dysphoria incorporation repeatedly emphasize that trans identity and Gender Dysphoria are not coextensive because the latter requires “clinically significant distress or impairment” in any functional domain. While the DSM-5-TR is clear that the distress must be related to gender incongruence, the DSM’s substantive description of dysphoria’s “functional consequences” focuses solely on the negative outcomes that anti-trans bias has on trans individuals on interpersonal and structural levels. This implies that Gender Dysphoria’s “impairment” is neither a physical or mental impairment nor a biological reality, as some lawyers have claimed. Rather, the DSM’s discussion of “functional consequences” demonstrates that Gender Dysphoria’s “impairments” are the observable, negative effects of interpersonal bias and discrimination and structural precarity produced by pervasive mistreatment.
Advocates’ claims that gender dysphoric individuals are distinct from trans individuals due to dysphoria’s physiological etiologies (e.g., brain or genetic differences or impairment of endocrine or reproductive system due to hormone therapy) seems both unreasonable and belied by the DSM itself. Trans people who otherwise fulfill the criteria for Gender Dysphoria (e.g., incongruence between one’s gender and secondary sex characteristics, strong desire to be another gender, etc.) almost certainly experience the functional consequences of pervasive anti-trans bias.
As a practical matter, trans people seek out a Gender Dysphoria diagnosis when they are denied insurance coverage or access to medical care, not because the diagnosis “reflects” their biological reality or their subjective experience. Gender Dysphoria incorporation in the ADA is misguided when an adequate, non-pathologized, and globally-used alternative already exists: Gender Incongruence (World Health Organization’s International Classification of Disease, ICD-11). Gender Incongruence is categorized as a condition related to sexual health, and is neither a mental health diagnosis nor an impairment, and any medical care related to gender affirmation can be billed to Gender Incongruence.
Rather than contesting the pathologization of gender variance, advocates pursuing Gender Dysphoria incorporation are arguing for continued consolidation and institutionalization of gender variance. Instead of fighting for informed consent or self-attestation models for accessing gender affirming care and gender recognition or acknowledging that alternatives already exist, advocates for Gender Dysphoria incorporation present psychiatrists and medical experts as legal necessities to determine who is “distressed” or “impaired” enough to deserve some amount of relief. In the short term, this litigation strategy seeks inclusion and incorporation for some people but, in doing so, seems to ignore long-term organizing against medicalization and for trans self-determination. Moreover, this litigation strategy will benefit only those who can fit a specific diagnostic criterion, one both over- and under-inclusive of trans individuals who experience discrimination and need some form of material relief.
III. Diverting Resources to Reformist Reforms Rather than Mutual Aid or Legal Services
Impact litigation requires substantial financial resources. National civil rights organizations spend millions of dollars on impact litigation, while rarely funding community organizing or providing mutual aid. When considering these expenses, advocates should question whether litigation will actually result in improved conditions for our community.
Abolitionists, queer/trans, and disability justice activists and scholars have developed useful frameworks for analyzing the results of policies, reforms, and strategies and whether those outcomes align with long-term goals. In evaluating whether a reform is liberatory or recuperative (i.e., “puts a legitimizing face on existing harmful system”), legal scholar and activist Dean Spade cautions against reforms “that provide no material relief, where relief only reaches least marginalized, that offer window dressing/legitimization of harmful systems and institutions, that do not reach root causes, that expand harmful systems, and that divide groups into deserving/undeserving.” He also asks the key question: who is pushing for the reform and how is it being fought for?
Spade’s criteria are instructive for analyzing the litigation strategy to incorporate Gender Dysphoria in the ADA. First, even if litigants win, relief under the ADA does not provide actual material relief immediately. Prior to accessing anything, those seeking redress under the ADA must sufficiently prove they are disabled and that their accommodations are reasonable or do not present a “direct threat.” However, accommodations are usually altered conditions, like extra time for people to get from their cell to the food hall, and are rarely “material” (e.g., money to buy food if your disability prevents you from getting from your cell to the cafeteria that day, etc.). Second, this strategy excludes individuals who cannot obtain a diagnosis, those whose gender variance is not captured by the definition, those who do not wish to engage in psychiatric evaluation of their gender, and those who cannot get care because they are prohibited by law, cannot afford care, or lack medical providers. Trans people who do not have access to some source of institutional, medicalized legitimacy are likely to be especially marginalized by this strategy. Third, this strategy legitimizes and expands psychiatric and medical gatekeeping in recognizing gender identity, rather than exposing or questioning the need for formal recognition. Lastly, this strategy does not mobilize the most effected individuals in our community for ongoing struggle. This strategy was not developed nor supported by those in our community who are non-lawyers, BIPOC, poor, incarcerated or detained, or living with disabilities. Rather, this strategy has been promoted primarily by white lawyers at white-led firms and civil rights organizations, the vast majority of whom are cisgender.
The organizers behind the Disability Justice principles observed that:
the disability rights framework centers people who can achieve status, power and access through a legal or rights-based framework, which we know is not possible for many disabled people, or appropriate for all situations. The political strategy of the Disability Rights Movement relied on litigation and the establishment of a disability bureaucratic sector at the expense of developing a broad-based popular movement . . . . Rights-based strategies often address the symptoms of inequity but not the root.
Gender Dysphoria incorporation in the ADA follows the tactics of the Disability Rights Movement, because this strategy will only benefit those who can achieve “status, power and access” through legal frameworks, and because it seeks to address symptoms of stigma and marginalization rather than build broad-based popular support for trans people experiencing discrimination. This strategy does not challenge the exclusion of other types of gender and sexual variance, including transsexualism, nor does this strategy challenge other excluded behavioral health conditions, like substance use disorder. While I do not believe that incorporating Gender Dysphoria would result in material relief for trans communities, I do believe ADA coverage for substance use disorders could significantly improve conditions for trans and nontrans people alike. Further exploring this strategy would, of course, require more analysis and ongoing collaboration with people organizing to end criminalizing substance use and to address the harms of the War on Drugs.
IV. Collapsing Trans Identities and Disability
In their article, Dangaran highlights the work of disability scholars and cultural workers who critique and wrestle with legal definitions of disability, provide expansive ways of conceptualizing disability, and traverse the space between what the ADA made possible and what it foreclosed. Dangaran suggests that many types of difference, including queerness, could be included within an expansive definition of “disability.” But Dangaran’s claims that expanding “disability” and queer/trans people adopting the identity “might constitute an act of resistance” seem to collapse various experiences of difference into a singular one.
Distinguishing between disability discrimination, ableism, and gender discrimination offers readers a necessary alternative to collapsing identities together. Historian Jules Gil-Peterson has argued that disabled people, trans people, and trans disabled people have all been “target[ed] for exclusion, policing, exploitation, and a confinement to unwaged spheres of social reproduction.” Trans people and disabled people both experience ableism. Talila A. Lewis (“TL”) defines ableism as “a system of assigning value to people’s bodies and minds based on societally constructed ideas of normalcy, productivity, desirability, intelligence, excellence, and fitness.” Critically, TL observes that one does not “have to be disabled to experience ableism.” Both trans people and disabled people are assigned less value based on socially-constructed norms.
When trans people are denied gender affirming medical care or gender-congruent housing in prisons and jails, they are experiencing gender discrimination. When people with disabilities are denied mobility accommodations or medically necessary treatment, they experience disability discrimination. When psychiatrists and jail staff express views that trans people are immoral or don’t deserve medical care, trans people experience ableism and gender discrimination. Similarly, when such staff express views that disabled people are “wasting” resources, trans people experience ableism and disability discrimination. What both groups share is structural oppression with shared ideological bases (e.g., ableism is undergirded by “eugenics, anti-Blackness, misogyny, colonialism, imperialism, and capitalism”), but each group experiences unique forms of discrimination and harm.
Such distinctions do not foreclose possibilities rooted in solidarity. Disability justice organizers emphasize the necessity of cross-disability and cross-movement solidarity. Trans people must fight for disability justice and disability organizers must fight for gender justice. Relatedly, trans communities should resist framings that collapse or analogize their experiences with other types of embodied difference.
Advocates pursuing ADA coverage for Gender Dysphoria analogize the discrimination and stigma trans people face to disability generally and to the ADA’s definition of disability specifically. Disability law scholar Doron Dorfman describes this rhetorical move as “disability frame advocacy.” This uses the framing but not the specific reality of disability to gain civil rights and legal recognition but, in the process, “further marginaliz[es] the status of people with disabilities.” Dorfman argues such framing is problematic because it “ignores, and therefore undermine[s] the historical and cultural context of the disability rights movement and the lived experiences of people with disabilities” and “dilutes the significance of what it means to live with disabilities and causes the lived experiences of disabled people to seem trivial and commonplace.” Ultimately, Dorfman advises against using disability metaphorically and encourages advocates to push for the adoption of “reasonable accommodation mandates in other areas of law pertaining to other historically marginalized groups.”
Disability justice and trans liberation require advocates, lawyers, organizers, and scholars alike to reckon with where our experiences overlap and diverge. Trans people, including those who have been diagnosed with Gender Dysphoria, often experience anti-trans bias, structural trans antagonism, and ableism. People with disabilities, regardless of diagnosis, often experience disability discrimination and ableism. Disabled trans people, especially those in prisons and jails, experience multiple intersecting forms of harm and are already experiencing the failures of civil rights law and constitutional law in providing relief. These similarities and distinctions should ground our politics and praxis in cross-movement solidarities and organizing. We do not need to be the same to fight for each other.
ADA litigation alone cannot address the substantial, immediate needs of people with disabilities, trans or otherwise. Litigation can be a useful tool in trans advocacy, but seeking Gender Dysphoria incorporation in the ADA ignores our movement’s historical organizing for collective self-determination and against expanded medical and psychiatric gatekeeping. Pursuing Gender Dysphoria inclusion in the ADA risks demobilizing our movement to focus on whether being trans is a disability, rather than building community support for particularly marginalized trans people and meaningfully supporting local organizing to meet our collective material needs right now. Trans people deserve meaningful, practical, and impactful solutions now. Short-term strategies that entrench gatekeeping without providing meaningful relief will only continue to fail our community.
* A.D. founded and manages the Trans Beyond Bars Project at the Prison Law Office. At PLO, he challenged harmful conditions of confinement on behalf of thousands of incarcerated LGBTQIA+ people across California. A.D. graduated from Stanford Law and is a member of the California State Bar.