Exclusion of Transgender People from Protections of the Americans with Disabilities Act is Constitutionally Suspect

Yesterday, the federal court for the District of Massachusetts ruled in favor of a transgender woman wrongly incarcerated in a men’s prison, allowing her claim challenging mistreatment by the Department of Corrections (DOC) under the Americans With Disabilities Act (ADA) to move forward. In the first-of-its-kind ruling, the court found that interpreting the ADA to exclude transgender people would be unconstitutional.

The decision in Doe v. DOC reads in part: “The Court agrees with Doe that for present purposes the DOC has not met its burden of demonstrating that housing her and other similarly-situated transgender prisoners in facilities that correspond to their birth sex serves an important governmental interest.”

The legislative history of the ADA reflects bias against transgender people and the statute’s language improperly associates the underlying medical condition that transgender people can experience with socially unacceptable behaviors.

Yesterday’s ruling discussed the constitutional problems with the exclusion of transgender people from the ADA:

“The pairing of gender identity disorders with conduct that is criminal or viewed by society as immoral or lewd raises a serious question as to the light in which the drafters of this exclusion viewed transgender persons…The Court is of the view that, to the extent that the statute may be read as excluding an entire category of people from its protections because of their gender status, such reading is best avoided. See Plessy v. Ferguson (Harlan, J., dissenting) (the Constitution, properly interpreted, “neither knows nor tolerates classes among citizens.”).

“This is a tremendous victory. As the Court recognized, a major goal of the ADA is to ensure that people with stigmatized medical conditions do not suffer discrimination on that basis,” said Jennifer L. Levi, Transgender Rights Project Director for GLAD. “Excluding transgender people from even being able to pursue ADA claims exacerbates stigma – and that’s wrong.  The ruling both allows our client to proceed with her claim to be transferred to a women’s prison, and it opens up an important source of federal protection to transgender people in many different contexts – including in employment and accessing public spaces.”

“This ruling underscores that our prison system must discard antiquated notions and stereotypes about transgender people,” said Bennett Klein, GLAD Senior Staff Attorney. “The Court emphasized that transgender people are entitled to be treated with dignity and respect and consistently with their prescribed medical treatment which in the case of our client, as the Court said, means being fully respected as a woman.”

On February 28, 2018, Levi argued that Jane Doe, a transgender woman experiencing daily degradation and mistreatment while incarcerated in a men’s facility, should be transferred to the women’s facility and, until that time, receive accommodations to protect her against the mistreatment she faces in the men’s facility. Jane Doe transitioned over 40 years ago, and is serving a sentence for a non-violent drug offense.

On March 5, Judge Richard G. Stearns issued an order granting in part Jane Doe’s motion for preliminary relief. The order instructed the Department of Correction (DOC) to take steps to ensure Ms. Doe’s privacy from male inmates and to have female correctional officers perform strip searches.

“This case and the decision clearly articulate the additional trauma transgender prisoners undergo just because of who they are. The bold and sound ruling issued yesterday by Judge Stearns reaffirms the anti-discrimination spirit of the ADA and recognizes the disconnect between Massachusetts policies and practices governing the treatment of transgender people within the prison walls versus outside of them,” said Elizabeth Matos of Prisoners Legal Services.

A group of disability rights, health and mental health law, and transgender rights organizations submitted a friend-of-the-court brief supporting Ms. Doe’s right to bring a claim under the ADA.

In addition to GLAD and PLS, Ms. Doe is represented by Goodwin Procter LLP.