July 22, 2015
Yesterday in a Statement of Interest filed in the case Blatt v. Cabela’s Retail, the Department of Justice (DOJ) declined to weigh in on the constitutionality of an explicit transgender exclusion written into the Americans with Disabilities Act (ADA). Today is the 25th anniversary of the passage of the ADA.
When the landmark law passed in 1990, it explicitly excluded from its protections people with Gender Identity Disorder (GID).
Jennifer Levi, director of the Transgender Rights Project at Gay & Lesbian Advocates & Defenders said, “It is surprising and disappointing that DOJ avoided the important question around the constitutionality of the transgender exclusion within the ADA. Given the rank animus behind it, the exclusion serves to marginalize and stigmatize a minority group that the DOJ has recognized needs and deserves legal protections.”
Kate Lynn Blatt, a transgender employee of Cabela’s brought a discrimination claim against the store under both Title VII of the Civil Rights Act, on the grounds that Cabela’s discriminated against her based on her sex; and the ADA, on the grounds that Cabela’s refused to reasonably accommodate Ms. Blatt when the store denied her use of an appropriate restroom and the ability to wear a nametag with her correct name.
The Statement of Interest read in part: “The United States respectfully requests that the Court defer ruling upon Plaintiff’s constitutional challenge to the GID Exclusion until after the Title VII claims are resolved, as disposition of Plaintiff’s Title VII claims could resolve this case without the need to reach the constitutionality of the GID Exclusion. Should the Court later determine that the constitutional issue cannot be avoided, the United States respectfully reserves the right to intervene or file a supplemental statement of interest at that time.”
Levi said, “There are two silver linings here: DOJ’s continued clear statement that transgender people are protected by Title VII; and DOJ specifically reserving its right to weigh in should the Court take on directly the issue of the constitutionality of the ADA exclusion. While we acknowledge these bright spots, the problem created by the ADA exclusion remains. Congress excluded transgender people from the protections of the ADA because of the stigma associated with gender dysphoria. As long as the transgender exclusion remains within the law, the ADA fails in its promise to create a level playing field in employment for all people capable of doing the job.”
Blatt is represented by Sidney L. Gold, Neelima Vanguri and Brian Farrell of Sidney L. Gold & Associates. GLAD is providing ongoing consultation and, along with Law Professor Kevin Barry of Quinnipiac University, also filed an amicus brief, arguing that by maintaining the discriminatory exclusion, the ADA perpetrates the very thing it seeks to dismantle: “the prejudiced attitudes and ignorance of others” and the ‘inferior status’ that people with disabilities – or those “regarded-as” by others as having a disability – occupy in society.”