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Court Recognizes Gender Dysphoria Discrimination Claims under Americans With Disabilities Act

Posted on: May 19th, 2017 by Art Leonard No Comments

For the first time, a federal court has recognized that individuals suffering from gender dysphoria are entitled to protection against workplace discrimination under the Americans with Disabilities Act (ADA), a federal law that requires employers to reasonably accommodate employees’ disabilities. The May 18 ruling by U.S. District Judge Joseph F. Leeson, Jr., accepted an argument by attorneys for Kate Lynn Blatt, a transgender woman, that a provision in the ADA excluding protection for “gender identity disorders” should be narrowly construed to avoid a potential violation of the Equal Protection Clause.  Blatt v. Cabela’s Retail, Inc., 2017 U.S. Dist. LEXIS 75665 (E.D. Pa.).

Blatt, who is also alleging sex discrimination by her employer, Cabela’s Retail, Inc., was diagnosed with gender dysphoria in October 2005. She alleges that her gender dysphoria “substantially limits one or more of her major life activities, including, but not limited to, interacting with others, reproducing, and social and occupational function.”   The ADA provides protection for people suffering from physical or mental impairments that substantially limit one or more of their major life activities.

Blatt claims that shortly after she was hired by Cabela’s in September 2006, she began to experience discrimination, culminating in her termination in February 2017. The court’s decision does not provide much factual detail, because it is narrowly focused on Cabela’s motion to dismiss the portion of Blatt’s complaint that relies on the ADA.

Part of the opposition to the ADA in Congress in 1990 focused on the possibility that the proposed law could be interpreted to prohibit discrimination against sexual minorities – gays, lesbian, bisexuals, and transgender people – on the theory that “abnormal” sexuality was a “disability” within the meaning of the statute. To combat this argument, the bill was amended to provide that “homosexuality and bisexuality are not impairments and as such are not disabilities under this Act.”  The provision goes on to say that the term “disability” “shall not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”  It also excludes protection for people afflicted by “compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs.”

This provision has long been considered to exclude any protection for transgender people related to their gender identity under the ADA. During the debate over the bill, it was made clear that this would not deny protection to transgender people who suffer from other disabling conditions, such as blindness, deafness and the like, not related to their gender identity.

Cabela’s asked the court to dismiss the two ADA counts of Blatt’s four-count complaint: failure to accommodate her gender dysphoria, and retaliation against her for reporting discrimination and requesting accommodations for her disability. Cabela’s argued that because of the exclusionary provision, any claim related to Blatt’s gender identity was excluded from coverage.  Cabela’s was not seeking in this motion to dismiss Blatt’s sex discrimination claims under Title VII.

Blatt’s attorneys countered with the argument that denying protection for a disability without a rational justification would violate Blatt’s right to equal protection of the laws under the 14th Amendment, but that the court could avoid having to consider the constitutionality of the statute by interpreting it to cover Blatt’s claims.

Judge Leesom accepted Blatt’s argument, finding that there is a “fairly possible” interpretation of the exclusionary provision, “namely, one in which the term gender identity disorders is read 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.”

Leesom breaks down the text of the exclusion into “two distinct categories: first, non-disabling conditions that concern sexual orientation or identity, and second, disabling conditions that are associated with harmful or illegal conduct. If the term gender identity disorders were understood, as Cabela’s suggests, to encompass disabling conditions such as Blatt’s gender dysphoria, then the term would occupy an anomalous place in the statute, as it would exclude from the ADA conditions that are actually disabling but that are not associated with harmful or illegal conduct.  But under the alternative, narrower interpretation of the term, this anomaly would be resolved, as the term gender identity disorders would belong to the first category described above.”

The judge found that this interpretation was consistent with controlling precedents in the 3rd Circuit, which covers the federal courts in Pennsylvania.  The 3rd Circuit Court of Appeals has endorsed the view that the ADA, as “a remedial statute, designed to eliminate discrimination against the disabled in all facets of society, must be broadly construed to effectuate its purposes.”  This requires a narrow reading of any exclusionary provisions.  This is also consistent with 2008 Amendments to the ADA that emphasized the Congressional purpose to allow a liberal interpretation of the concept of disability so as to provide maximum protection against unjustified workplace discrimination.

Leesom held that because a narrow interpretation of the exclusionary provision would avoid raising the constitutional equal protection question, it was his “duty to adopt it,” and the motion to dismiss should be denied.

This ruling does not necessarily mean that Blatt will ultimately win her case, but it will remove the employer’s argument that her case cannot be brought under the ADA.   Even if she had lost this motion and suffered dismissal of her ADA claim, Blatt could still litigate a sex discrimination claim, as the 3rd Circuit has accepted the argument that anti-transgender discrimination may be attacked as sex discrimination under Title VII by using the sex-stereotype theory that was approved by the Supreme Court in 1989 in the Price Waterhouse v. Hopkins case.  But finding ADA coverage is very important, because that statute imposes a duty of reasonable accommodation to enable an employee with disabilities to work, while Title VII does not impose any gender-related accommodation requirements other than, arguably, some accommodation to pregnancy and childbirth.  The ADA also has provisions governing medical testing and confidentiality of medical information, which may be useful for individuals dealing with gender dysphoria as well.

Blatt is represented by Sidney L. Gold, a Philadelphia lawyer, with assistance from the Civil Justice Clinic of Quinnipiac University School of Law, as well as Neelima Vanguri, an attorney at Gold’s law firm.

Autistic Student Subjected to Homophobic Bullying May Proceed on Title IX and Equal Protection Claims

Posted on: April 30th, 2017 by Art Leonard No Comments

In an early application of the 7th Circuit’s ruling in Hively v. Ivy Tech Community College, 853 F.3d 339 (Apr. 4, 2017), U.S. District Judge James D. Peterson of the Western District of Wisconsin (which is in the 7th Circuit) ruled that an autistic man who used to be a student in the Eau Claire Area School District can maintain his action under Title IX and the Equal Protection Clause on a claim that he was subjected to harassment based on sex-stereotyping and a perception by other students that he was gay, and that school authorities who were informed of the harassment did not take any reasonable steps to address the situation.  Bowe v. Eau Claire Area School District, 2017 WL 1458822, 2017 U.S. Dist. LEXIS 61496 (D. Wis., April 24, 2017).

Connor Bowe also asserted claims under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1974, as well as Title VI of the Civil Rights Act. Wrote Judge Peterson, summarizing the complaint, “Bowe’s schoolmates bullied him for many years.  They called him names, such as ‘gay,’ ‘queer,’ ‘fag,’ ‘pussy,’ ‘stupid,’ and ‘butt boy.’  They shoved him and threw things at him.  ‘At some point prior to’ February 2011, when Bowe was about to turn 14, [Principal Tim O’Reilly] and non-party Kevin Stevens, another District official, told some of Bowe’s classmates that Bowe suffered from autism.  Bowe’s parents did not consent to the disclosure of Bowe’s disability.  The bullying continued, and in fact grew more serious.  Between February 2011 and February 2014, Bowe’s classmates called him ‘stupid,’ ‘fat,’ ‘weak,’ ‘fag,’ ‘pussy,’ ‘shit stain,’ and ‘bubble butt.’  They accused him of having ‘mental deficiencies’ and told him to ‘go fucking die.’  They threw things at him, threatened to hurt him, ‘physically assaulted him,’ threw eggs at his house, and left a bag of feces at his house.  Bowe and his parents complained to [Principal David] Oldenberg, O’Reilly, and other District officials about the bullying multiple times a year each year from 2010 to 2015, but no District official took any action to end the bullying.  Because of the bullying, Bowe’s grades fell significantly and he was prevented from fully participating in some of his classes.”  We have reproduced the court’s summary in full so that readers can appreciate the severity of abuse Bowe claims to have suffered.

Bowe filed his complaint on November 14, 2016. The defendants moved to dismiss.  They argued, as to the ADA and Rehabilitation Act claims, that Bowe had not alleged “facts sufficient to show that he was harassed based on his disability or that the harassment was sufficiently severe or pervasive,” according to Judge Peterson’s description of the motion.  Who are they kidding?  They tried to argue that because just a few of the items of verbal harassment might be linked to Bowe’s autism, he could not state a claim under the disability discrimination laws.  Peterson rejected that argument.  “When some incidents of harassment are alleged to be based on the plaintiff’s protected status, the court may consider allegations of other, more generalized harassment when determining whether the alleged harassment was severe enough to state a peer-harassment claim.  One may reasonably infer from Bowe’s allegations that the totality of the harassment he endured was so severe that it changed the conditions of his education and created an abusive education environment.”

As to the Title IX sex discrimination claim, Peterson rejected the defendants’ argument that “Bowe has not plausibly alleged that he was harassed on the basis of sex.” To the contrary, he wrote, “As both parties recognize, allegations that a plaintiff was ‘harassed because of a failure to adhere to specific sexual stereotypes’ are sufficient to satisfy this element,” citing Hively.  He noted a district court decision from Indiana that found that it was reasonable to infer harassment because of “failure to adhere to traditional male stereotypes” when a victim was called “gay” and “faggot” by bullies.  While conceding the defendants’ contention that some courts have described as a “subtle” issue under Title IX the inference to be drawn when “young children” use “gendered words” to bully other children, Peterson pointed out that the cases defendants were relying on “show that the use of such words by middle- and high-school students may constitute sexual harassment.”  Here, he wrote, “the consistent pattern of gender stereotype slurs alleged by Bowe makes it easy to infer that his classmates harassed him because of his failure to adhere to traditional gender stereotypes.”

In addition to his statutory claims, Bowe sought to hold two District officials liable for an equal protection violation under the 14th Amendment, asserting a “class-of-one” equal protection claim. Defendants argued that he had failed to allege that he was treated differently from others similarly situated.  (What?  Are they claiming that all students who complained of harassment were similarly blown off or ignored by school administrators?)  Peterson rejected this argument, relying on Miller v. City of Monona, 784 F.3d 1113 (7th Cir. 2015), for the proposition that “‘plaintiffs alleging class-of-one equal protection claims do not need to identify specific examples of similarly situated person in their complaints,’ at least when the complaint does not otherwise reveal a rational basis for the difference in treatment.”  Here, wrote Peterson, “Bowe alleges that O’Reilly and Oldenberg knew about the ongoing harassment but took no action to stop it.  Taking these allegations as true, there is no rational basis for their treatment of Bowe.  So Bowe’s equal protection claims will survive defendants’ motion to dismiss.”

The defendants also argued that because Bowe could have asserted claims under the Individuals with Disabilities Education Act (IDEA), he was required to file his charges with the Department of Education and exhaust administrative remedies before filing suit, but Peterson was unpersuaded, finding that Bowe’s claims arose independently under the various discrimination laws he cited, and did not require administrative exhaustion. At this point, the now 20-year-old Bowe is seeking a remedy for past actions, not suing under IDEA for an order to the school district to ensure that he receive the “free appropriate public education” promised under IDEA.

However, Peterson noted that Bowe “made no argument in support” of his direct ADA and Rehabilitation Act claims (and a racial discrimination claim under Title VI) in responding to the motion to dismiss, and so those claims were waived and would be dismissed in response to the district’s motion. Peterson also denied Bowe’s request to allow him to file an amended complaint to make up for any pleading deficiencies, finding that the original complaint, which withstood the motion to dismiss under Title IX and the Equal Protection Clause, was adequate to support his claims for the relief he is seeking.  Thus, Peterson denied the defendants’ motion to dismiss the Title IX and Equal Protection claims, on which the case can proceed.

Bowe is represented by Paul A. Kinne, of Gingras, Cates & Luebke, S.C., Madison, WI.

New York Trial Judge Refuses to Dismiss Transgender Woman’s Discrimination Claim Against Residential Drug Treatment Program

Posted on: December 12th, 2013 by Art Leonard No Comments

Finding that a transgender woman who was sent to a residential drug treatment program under a plea agreement had sufficiently alleged that she encountered discrimination there, New York Acting Supreme Court Justice Debra Silber denied a motion to dismiss Sabire Wilson’s housing discrimination claims under state and New York City law against Phoenix House and Sydney Hargrove, the director of Phoenix’s induction unit.  Justice Silber’s opinion, dated December 10, was published by the New York Law Journal on December 12, 2013.  Wilson v. Phoenix House, 2013 N.Y. Misc. LEXIS 5657(Supreme Ct., Kings Co.).

Silber’s opinion commented that “there has been a considerable lack of understanding in the courts with regard to issues of concern” to transgender people, and she provided a lengthy summary of the developing law of gender identity discrimination before turning to address the specific issues raised by the motions to dismiss.

Wilson claims that she told Hargrove during her intake interview that she was transgender (male to female).  Hargrove asked whether her hair was “real.”  When Wilson told him that she was wearing a wig, he told her that this was not allowed at Phoenix House, although it appears that other women were allowed to wear wigs.  A month later, Wilson claims, a counselor told her that she would have to stop wearing high heel shoes, although some other women were allowed to wear high heels.  When Wilson attended group therapy meetings, she was required to sit with the men rather than with the women, and when some women objected to her attendance at a women’s support meeting, she was asked to leave.  Wilson complained to Hargrove about being required to share sleeping or bathroom accommodations with men, but she claims that Hargrove denied her complaint, telling her “you should adjust.”  Wilson eventually persuaded the other women in the women’s support group to consent to let her attend their meetings, but Hargrove insisted that she not do so.

Wilson alleged that during her fourth week in the program, another counselor told her that Hargrove believed she should be transferred to another program because Phoenix House could not meet her needs as a transgender person and, if a suitable facility was not found, she would most likely be sent to jail.  When Wilson told other residents about this, they got up a petition asking Hargrove to reconsider his decision, which was signed by thirty-eight residents, but Hargrove made no formal response and did not tell Wilson where she might be transferred.  When Phoenix House failed to find an alternative program for Wilson, she gave up hope and, frustrated, left Phoenix House without permission.  She was resentenced to 2-1/2 years in prison.

Wilson filed suit first in federal court, claiming violations of her federal constitutional equal protection rights.  She also charged Phoenix House with violating a federal law against false advertising, because it states on its website that it accepts lesbians and gay men.  She also asserted New York State and New York City disability discrimination claims.  She could not assert a federal disability claim, because the Americans With Disabilities Act specifically excludes gender identity disorder from its definition of disability.   Ruling on a motion to dismiss by Phoenix House and Hargrove, U.S. District Judge Denise Cote found that none of the federal claims were valid, but that Wilson might pursue her state and local law claims.  Wilson then got her federal case dismissed and filed her new lawsuit in New York Supreme Court in Brooklyn, where it was assigned to Justice Silber.

Phoenix House argued that as a residential treatment facilit, it was not subject to the state and local laws forbidding housing discrimination.  It also claimed that Wilson did not qualify for protection as a person with a disability, and that even if she could pursue her claims, she was limited in the relief she could seek to ordinary damages, but not punitive damages or an injunction.  In her complaint, Wilson sought to have the court order Phoenix House to take various steps altering its policies and training its staff, which would be the subject of injunctive relief.   Wilson also argued that since Judge Cote had already found that Wilson’s state and local law discrimination claims could be pursued, Phoenix House should be precluded from seeking dismissal of those claims.

Justice Silber found that because Wilson had her federal case dismissed, Judge Cote’s findings did not automatically block Phoenix House from seeking dismissal of state claims on the same grounds.  However, she found that Wilson had alleged potentially valid claims under the state and city laws.

Prior cases make clear that a person who encounters discrimination in New York due to their gender identity disorder can seek relief under the disability discrimination provisions.  State courts had also ruled in prior cases, even before the New York City Council amended the city’s human rights ordinance to include “gender identity” within the definition of “gender,” that transgender people who encounter discrimination can seek relief under both the state and city laws, because the concept of sex and gender under these laws is broadly construed.  Furthermore, Justice Silber found that residential programs operated by contract with the government had in the past been considered to come under the provision of the state and local laws banning housing discrimination.  Although Wilson was at Phoenix House for treatment, she was required to live there, and thus for the duration of her stay it was her dwelling place.  Under both the state and local laws, found the judge, an operator of a residential facility has an obligation to make reasonable accommodations for people with disabilities in order to provide them with equal opportunity to benefit from the housing and services that are provided.

Thus, it was clear that Wilson’s allegations were sufficient basis for a discrimination claim.  Justice Silber also found that although the state law was more limited in this respect, Wilson could seek punitive damages and injunctive relief under the city’s human rights ordinance.  Thus, while dismissing the claims for punitive damages and injunctive relief under state law, Silber denied the motion to dismiss those claims under the city ordinance.

Sydney Hargrove, who was also named as a defendant, had moved to be dismissed from the case.  Wilson’s complaint charged him with aiding and abetting Phoenix House’s discrimination against her, in violation of the state human rights law, which goes beyond federal law to authorize claims against employees of a defendant company who played a personal role in discriminating against a plaintiff.  Hargrove’s argument, tracking Phoenix House’s motion to dismiss, was that because there was no valid discrimination claim against Phoenix House, Hargrove could not be liable for “aiding and abetting” discrimination.  However, since Justice Silber found that Wilson had alleged sufficient facts to maintain her claim against Phoenix House, she also rejected Hargrove’s motion.

Having refused to dismiss Wilson’s discrimination case, Silber ordered the defendants to file their answer within thirty days, and then discovery will begin unless a settlement is negotiated.  Wilson is represented by Armen Merjian of Housing Works.  Justice Silber is a member of the International Associate of Lesbian and Gay Judges and the LGBT Bar Association of Greater New York.