Ludicrous Misreading of Americans with Disabilities Act

by Ed Whelan

The Americans with Disabilities Act expressly defines “disability” to exclude “gender identity disorders not resulting from physical impairments.” In other words, the ADA does not confer any protections on a person who claims to have been discriminated against on the basis of such a gender identity disorder.

The crystalline clarity of this provision somehow didn’t stop federal district judge Joseph H. Leeson, Jr. In a ruling last month in Blatt v. Cabela’s Retail, Inc., Leeson denied an employer’s motion to dismiss the ADA claims of a former employee who alleged that he had “Gender Dysphoria, also known as Gender Identity Disorder” and had been discriminated against on the basis of that condition.

Let’s trace Leeson’s somersaults of reasoning:

1. Noting that the employee contended that the ADA’s exclusion of gender identity disorders would violate the Constitution, Leeson invokes the canon of constitutional avoidance in interpreting the ADA. Under the canon of constitutional avoidance, if a serious doubt is raised as to the constitutionality of a federal law, a court will determine whether there is a “fairly possible” alternative interpretation of the federal law that avoids the constitutional issue.

One tiny problem: Leeson never bothers to explain how reading the ADA to mean what it says would present any constitutional problem. Oh, I’m sure that some academic somewhere could spin some theory about how some norm implicit in some penumbra of some emanation of some simple word in the Constitution could require that any federal law that protects against discrimination on the basis of disabilities somehow also protect against discrimination on the basis of gender identity disorders. But Leeson doesn’t even try to spell out such a theory. He simply assumes, without a single word of explanation, that the ADA’s exclusion of “gender identity disorders not resulting from physical impairments” is constitutionally problematic.

2. This is beyond bizarre: Leeson concludes that it is “fairly possible” to read the term gender identity disorders “narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”

What?!?

We’re supposed to believe that it is “fairly possible” to read gender identity disorders to mean only gender identity (“identifying with a different gender”) and not to extend to disorders? That’s nuts.

Further, the ADA’s general definition of disability involves an “impairment that substantially limits one or more major life activities of [an] individual.” Gender identity without “clinically significant stress and other impairments that may be disabling” wouldn’t be a disability. So what conceivable sense would it make to carve gender identity—but not gender identity disorders— out of the general term disability?

Bench Memos

NRO’s home for judicial news and analysis.