Disability Law Blog Essay

Embracing the ADA: Transgender People and Disability Rights

Editor’s Note: This piece is a part of our series celebrating the thirty-year anniversary of the Americans with Disabilities Act (ADA).

Throughout history, including late into the twentieth century, exclusion of people with disabilities was the norm.  Prejudice, antiquated attitudes, and the failure to remove societal and institutional barriers typified society’s response to disability.  Laws like the Americans with Disabilities Act of 1990, which celebrated its thirtieth anniversary last year, and the ADA’s antecedent, Section 504 of the Rehabilitation Act of 1973, sought to change this, and with some success.  Buildings are required to have ramps and public transportation must be accessible. The unjustified institutionalization of people with developmental disabilities is prohibited.  Schools are required to reasonably modify testing and other policies for students with disabilities.  And employers are prohibited from enforcing qualification standards unrelated to a person’s ability to do the job and are required to provide reasonable accommodations to employees.

Cultural attitudes toward disability have also begun to shift—including at the highest levels of government.  At President Joe Biden’s inauguration, for example, Georgia Fire Captain Andrea Hall, an African American woman, simultaneously signed and recited the Pledge of Allegiance, and Senator Roy Blunt invited those in attendance to “stand if you are able.”  President Joe Biden, who has recently begun to speak publicly about his speech impediment, is the first president to have a sign language interpreter at press briefings.  He has also committed his administration to an ambitious “plan for full participation and equality for people with disabilities”—from the full inclusion of people with disabilities in policy development, to securing and expanding access to healthcare, employment, education, housing, and transportation.

But much work remains to realize the promise of full inclusion, respect, and equality for people with disabilities.  In particular, stigma associated with disability—the idea that health conditions render a person abnormal, defective, and inferior—remains pervasive.  This is especially true with respect to those health conditions that affect only a small minority of us.  Gender dysphoria, a serious medical condition associated with transgender people, is one such condition.

Gender Dysphoria and Its Treatment

Gender dysphoria is the profound distress that transgender people experience when they are not able to live life consistent with their gender identity.  For lawyers who represent transgender people, and doctors who treat transgender patients, the symptoms are familiar.  Aimee Stephens, a transgender woman whose Title VII case resulted in U.S. Supreme Court precedent holding that federal employment discrimination law protects LGBTQ people, described the experience of gender dysphoria in a letter she wrote to her employer.  As she explained, “I have felt imprisoned in a body that does not match my mind, and this has caused me great despair and loneliness.”  Or as a young transgender boy described to his parents, a comment relayed to their counsel (and co-author of this post, Jennifer Levi), “I just don’t feel like getting out of bed knowing wherever I go people don’t see the me I am in my heart.”

The growing medical evidence demonstrates that gender dysphoria derives from an uncommon interaction of the endocrine and neurological systems, which results in a person being born with sex characteristics that are inconsistent with the person’s gender identity.  Acknowledging this evidence, the U.S. Department of Justice concluded in 2015 that “the current research increasingly indicates that gender dysphoria has physiological or biological roots,” and that gender dysphoria is a protected disability under federal disability rights laws.  Not only did the Department of Justice not reverse this position during the Trump administration, it explicitly supported the position of plaintiffs in federal disability rights claims pursuing protection under federal law.

As debilitating as gender dysphoria can be, there is a ready way to remedy it.  The treatment is transition—namely, securing the medical and social support that enable a person to comfortably live consistent with their gender identity.  Transition is backed by a broad consensus of the national and international medical community, recognized as authoritative by numerous courts, and supported by evidence-based medicine dating back over sixty years.

Gender Dysphoria and Stigma

Much of the stigma that attaches to gender dysphoria derives from prejudice and stereotypes toward transgender people, i.e., transphobia.  Consider, for example, the active duty and aspiring transgender military service members with gender dysphoria during the Trump administration, who were told by the former President via tweet that they were no longer welcome in the military because “[t]ransgender individuals” were a “burden[]” and a “disruption.”  Consider also the high school principals who told students like Gavin Grimm and Ash Whitaker, both transgender students who experienced gender dysphoria, that they could not use gender-appropriate restrooms because it would violate “the dignity and privacy rights of other students” and would create “safety issues and lewdness concerns.”  Or consider the many state and local laws that once criminalized the very act of transgender people appearing in public.

Thankfully, transphobia is receding, given a recent and dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of society.  A collective understanding of transgender people is bringing about a broader understanding of gender dysphoria and growing access to the medical care essential to transgender people’s health and well-being.

But there is another, more subtle source of stigma associated with gender dysphoria—one that derives not from transphobia outside of the transgender and allied communities, but rather from “myths and fears” that continue to attach to disability.  There is a resistance on the part of some in the transgender and allied advocacy communities to pursue protections under federal disability rights laws for fear of associating transgender people with disability.  This resistance is misguided.  By eschewing arguments narrowly focused on gender dysphoria, transgender rights advocates unwittingly exacerbate stigma toward the condition and toward people with disabilities more broadly.  They also disserve transgender people by ignoring powerful legal protections that are particularly well-suited to remedy many of the kinds of discrimination that transgender people face—and that sex discrimination laws do not yet reach.  For example, unlike federal disability rights laws, many sex discrimination statutes do not apply to a range of state and local government programs and services.  This includes prisons, which are disproportionately populated by transgender people subjected to over-policing and often prosecuted for survival crimes.  Nor do sex discrimination statutes expressly require the kind of individualized, reasonable accommodations some transgender people seek to navigate a world in which sex-segregation policies and practices are commonplace.

A case in point is the experience of Angelina Resto, the first incarcerated transgender person in the country to secure a transfer from a men’s to a women’s prison following a court order against the department of corrections for its refusal to recognize her as a woman.  Ms. Resto, who has gender dysphoria, successfully argued that the Massachusetts Department of Corrections failed to reasonably accommodate her, in violation of federal disability rights laws, by refusing to transfer her from a Massachusetts men’s facility, where she faced brutal daily harassment and threats to her safety, to the state’s women’s facility.  Over the past five years, numerous incarcerated people—some appearing pro se—have successfully stated claims that prison officials violated federal disability rights laws by housing them according to their birth sex and denying them medical care to support their gender transition.

President Biden’s commitment to advancing disability rights and making more visible the talents of people with disabilities are a welcome sign.  While these efforts help reduce the stigma of disability, much work remains.  Transgender people and allies have a significant role to play in countering the stigma faced by transgender people and others who face barriers, not from the medical or mental health conditions they experience, but from the social, physical, and cultural norms adopted across our society.  While federal disability rights laws like the ADA have done a tremendous amount to kickstart, sustain, and fuel that work, we are a long way from the day where people with disabilities are fully integrated, supported, and affirmed in our communities.