Legal Lines

Transgender Support (Part II): Is Gender Dysphoria a Disability under the ADA?

By Robin Sheridan, JD, MILR; and Heather Mogden, JD

In part one of this two-part article, we explained that no court has definitively held that gender dysphoria—(GD) the diagnosis associated with transgenderism—is a disability under the Americans with Disabilities Act (ADA), but several federal courts have said it could be, which is legally significant.

Moreover, the U.S. Supreme Court is slated to decide in its 2019-2020 term whether employees are currently protected from discrimination on the basis of sexual orientation and gender identity under existing bans on discrimination on the basis of sex. The point is, the social and legal trends are leaning toward recognition and resolution of unique transgender issues.  
Consequently, when a client suggests that workplace barriers exist due to GD, there are a number of key points EA professionals will want to keep in mind. Last time, we discussed maintaining confidentiality and the proper use of pronouns. We will briefly review the importance of using the proper pronoun, and then pick up from there.

Using the Right Pronouns
A person who was born a man but identifies as a woman is called a transgender woman and goes by “she.” A person who was born a woman but identifies as a man is called a transgender man and goes by “he.” Always use the pronoun for the gender with which the employee identifies.
Using the wrong gender pronoun is called misgendering, and, as one expert explained, “misgendering transgender people can be degrading, humiliating, invalidating, and mentally devastating.”

Interactive training, applicable to all levels of employees and managers, can help organizations avoid issues with misgendering. EA professionals can provide critical assistance to an employer’s proactive approach in this regard, helping to build the relationship between the organization and the transgender employee.

For Starters…
The first question can simply be, “How can I help you?” Request written authorization to speak with the employer on the employee's behalf or to join the employee in such a meeting. If the employee has posed a simple fix, the employer may agree regardless of whether any accommodation is legally required.  
When the fix isn’t simple, or when the simple fix isn’t working, the employer will need to analyze the claimed disability and the reasonableness of available accommodations under the ADA’s requirements.

ADA Requirements
The ADA generally requires employers to provide reasonable accommodations for disabled employees. A reasonable accommodation is one: (a) that enables the employee to perform the essential functions of the job despite his or her disability; (b) that does not pose an undue hardship—phrased by some courts as a determination that the cost of the accommodation is not disproportionate to the benefit; and (c) that is consistent with any recommendations of a medical or mental health professional who examined the employee.

Reasonable accommodations typically include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters and other similar accommodations.
In a transgender context, the most commonly requested accommodations include traditional accommodations such as:

* Allowing employees to take leave or making scheduling adjustments for medical or mental health treatment related to their disability;
* More condition-specific accommodations like using particular gender pronouns;
* Allowing employees to wear the uniforms of the gender with which they identify;
* Allowing employees to choose the name on their name tags; and of course the more controversial accommodation of;
* Allowing employees to use particular bathrooms or locker rooms. It is important to note that unisex restrooms may not be considered a sufficient accommodation.

Assist Clients in Interactive Accommodation Discussions
As a part of its compliance with ADA, the employer generally must participate in an interactive discussion with a disabled employee to identify a possible accommodation. 
Providing a new name tag and uniform are simple enough accommodations, but almost everyone is familiar with the body of transgender “bathroom” cases, an issue that may soon be taken up by the United States Supreme Court.

These cases routinely have made national news, sparking debate over transgender issues. While these lawsuits have typically been filed under Title VII or Title IX, many of the arguments presented need only minimal tweaking to support an ADA claim—that is, if GD is found to be a disability supporting such a claim.  

In light of the Massachusetts and Pennsylvania decisions finding that GD is not expressly excluded from the ADA’s definition of disability, an organization refusing to provide accommodations may be more likely to face claims under the ADA, and just as likely to face claims under Title VII, and, depending on the identity of the employer, Title IX as well. 
Of course, providing the accommodation isn’t entirely risk-free. The petition for review before the Supreme Court was filed by *cisgender students asserting that their school’s policy of allowing transgender students to access bathrooms and locker rooms consistent with their gender identity violated their constitutional rights of bodily privacy. (*Cisgender refers to a person who identifies as their birth gender, i.e., a male who identifies as male or a female who identifies as female.)

If the Supreme Court agrees with the Third Circuit in that case and denies the cisgender students’ claims, employers will likely see more requests for transgender accommodations, and EA professionals should be poised to assist.

Summary
This article is educational in nature and is not intended as legal advice. Always consult your legal counsel with specific legal matters. If you have any questions or would like additional information about this topic, contact Robin Sheridan, (414) 721-0469, rsheridan@hallrender.com; or Heather Mogden, (414) 721-0457, hmogden@hallrender.com.

Editor’s note: This article addresses the question of whether gender dysphoria is a disability under the ADA. The reader should note, however, that discrimination based upon sexual identity, sexual orientation, etc. is prohibited under many states’ fair employment laws, as well as in a growing number of federal jurisdictions.

Robin Sheridan and Heather Mogden are attorneys with Hall, Render, Killian, Heath & Lyman, PC, the largest health care-focused law firm in the country. Visit the Hall Render Blog at http://blogs.hallrender.com for more information on topics related to health care law.