Is Being Trans A Disability Rights Issue?

by s.e. smith
Scott Olson/Getty Images News/Getty Images

A challenging case that connects transgender rights with the Americans with Disabilities Act (ADA) is making its way through the courts right now — and while its outcome could have a profound impact on how transphobic employment discrimination is treated in the U.S., it also has some worrying implications.

According to GLBTQ Legal Advocates and Defenders (GLAD — not to be confused with the Gay and Lesbian Alliance Against Defamation, GLAAD), plaintiff Kate Lynn Blatt began transitioning in 2005. After being hired at a new job in 2006, she claims that she was subjected to systemic harassment, including denial of access to the restroom, being forced to wear an inaccurate name tag, and eventual termination. She's suing her former employer under Title VII of the Civil Rights Act on the grounds that they violated her rights on the basis of gender — but she's also seeking remedy under the Americans with Disabilities Act.

Blatt is arguing that her employer denied the "reasonable accommodation" required by the law when they refused to allow her to use the correct restroom or wear an accurate name tag. The EEOC considers gender identity and transgender status to be a protected class under Title VII — but attempting to use the ADA to prove a trans employment discrimination case is unusual.

A ruling in favor of Blatt could set a precedent for a broad range of situations in which trans people are discriminated against in ADA-protected settings. But it could also promote a medicalized view of gender, in which being transgender is treated like a medical condition that requires treatment. Some trans people choose or need to pursue medical treatment options, including hormones and surgery, but others do not — including some trans men and women, by necessity or choice.

Being trans has also historically been pathologized and treated as "something wrong" that needs to be fixed — a situation similar to being told, for example, that being a cis woman is a medical condition because you need some medical treatments related to your gender, like hormonal birth control or pregnancy care. This is not a view shared by most trans people.

These cases opens a can of worms — are trans rights disability rights? With limited legal remedies available, should trans people use whatever legal options they can, even if doing so might have unfortunate consequences? Can a legal victory be a great moment for civil rights while also inadvertently promoting stigma?

By defining transness as a disability, this ruling could inadvertently reinforce these social attitudes. This is clearly not Blatt's intention — and definitely not the goal of the trans community at large. But will the public understand that?

While evaluating Blatt's case earlier this month, a Pennsylvania court attempted some complicated hair splitting, with judges determining that being trans in itself doesn't offer ADA protections — but someone diagnosed with gender dysphoria, like Blatt, should be covered by the landmark disability legislation.

These cases opens a can of worms — are trans rights disability rights? With limited legal remedies available, should trans people use whatever legal options they can, even if doing so might have unfortunate consequences? Can a legal victory be a great moment for civil rights while also inadvertently promoting stigma?

The loaded histories of both trans rights and disability rights come into play here — both populations have historically been marginalized because of their identities and lived experiences, and both have fought hard for autonomy. For both trans and disabled people, sometimes that fight has involved working inside a system that is inherently unfair — for example, in cases of trans people accepting medicalization in return for accessing treatment. Even as they knew that turning gender into a medical condition was fraught with issues, including supporting an often cis-mediated gatekeeping system that determined who was "trans enough" to merit treatment, trans people worked with what they had to survive in the short term.

Historically, trans people had to be diagnosed under the Diagnostic and Statistical Manual, the bible of psychiatric diagnoses, with "Gender Identity Disorder" if they wanted to access services — a label that made it sound as though transness was a form of mental illness. There's nothing wrong with being mentally ill, but at the same time, labeling gender as mental illness is simply inaccurate. This was unfair to mentally ill people and trans people alike — being trans isn't about a complex chemical imbalance in your brain and a constellation of assorted symptoms that affects the way you perceive and interact with the world. Just as I wouldn't expect to find depression in a listing of dental disorders, I would be surprised to find transness listed under mental health conditions.

Trans people are still relegated to the DSM, but now the term "Gender Dysphoria" is used, describing symptoms associated with being unable to live in congruence with your true gender — for example, a man might experience dysphoria because of his large breasts, a woman might struggle with her facial hair, or an agender person might be distressed by their penis. The shift in diagnostic terminology was designed to fight stigma surrounding trans identities by addressing symptoms of distress as the problem, rather than singling out trans identities themselves as the issue that needs to be fixed.

This imperfect compromise and distinction spills over into the broader conversation about trans identity and it hearkens back to a bitter battle: Transness, many argue, shouldn't be considered a pathology, because it's a natural variation of human diversity.

Sometimes you have to work with the terrible system you have today in order to live to fight to tear the system down tomorrow.

Despite efforts to move away from treating gender as an illness, the framework under which trans people receive care is still heavily medicalized. Trans patients who want to access services like hormones, surgery, counseling, and other transition-related needs first need a diagnosis of "gender dysphoria" in order to get referrals and request insurance coverage. Trans people who want to change their names and/or genders on legal paperwork may also need formal documentation from medical providers. Some workplaces require similar documentation from trans employees. In other words, on paper, they have to appear sick — even though some find it humiliating and frustrating to have to jump through this particular hoop.

But it's not just humiliating — it's also potentially dangerous. Advocates for "conversion therapy" have used that idea to suggest that it's possible to "cure" trans youth. Some conservatives also leverage this in rhetoric that describes trans people as diseased and depraved — similar to how LGBQ people are described, as sexual orientation was also until very recently listed in the DSM. When you say that trans people are sick in a society where being sick is considered bad and sometimes treated as a moral failing (though this shouldn't be the case and in the long term we should be fighting disablism as a pernicious social problem), you are creating a dangerous opening for people to attack the trans community.

The practice of viewing transness as a sign of illness or moral failing was reflected in conversations when the ADA was drafted and lawmakers went out of their way to exclude "Gender Identity Disorder," deeming it an "immoral medical condition." Today, many conservatives still behave as though being trans is an aberration.

From a legal standpoint, this case is a brilliant move. If Blatt can establish that gender dysphoria should be protected under the ADA, she's not just proving her case; she's also showing how the ADA can be utilized to fight back against discrimination in a wide variety of situations.

For example, trans kids who aren't allowed to use the right bathroom at school could cite the ADA, as could trans patients who are harassed in hospitals, people who are refused housing, and people who are refused service in businesses on the grounds of their gender. Since many states still lack protections for trans people in these settings, seeking coverage under disability may be the next best option. This could be an immensely valuable tool for trans people to use as they fight for equal rights.

But as a precedent, it also raises concern — because pathologizing gender is worrying. Even though the original court took care to distinguish between her gender (not a pathology) and gender dysphoria (a symptom experienced by some trans people), it's unclear if society at large will understand this subtle difference — or if this legal case will entrench the idea that being transgender is evidence of a medical condition, and by extension, something that needs to be "cured." That idea has huge social implications, from parents sending trans children to "corrective therapy" to the casual abuse of trans people as deviant sickos.

It's also worth noting that for all the hype around the ADA, like complaints of "drive-by" lawsuits from people hungry for cash, pursuing justice under the ADA can be grueling and expensive. This will not, in other words, be a magic bullet for trans people.

As the trans community talks about whether this is a good strategy from a social standpoint, it also brings up some complicated issues around disability stigma. There is, after all, nothing wrong with being disabled, and no shame in a disability identity — but assigning disability where there is none could be a disservice to trans people and disabled people alike, including people who fall under both categories.

It's also important to remember that some disabled people see themselves as reflections of human diversity, not pathologies to be solved, and they use the ADA much like Blatt is trying to, as a tool to enforce their right to equal access when society attempts to deny fair treatment. Sometimes you have to work with the terrible system you have today in order to live to fight to tear the system down tomorrow.

Fights for trans and disability rights are likely to intensify in the coming years, and when common ground exists, perhaps it should be exploited — but cautiously. Because some wins in this arena could inadvertently set disabled and/or trans people back in their struggle for equality.