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Disabled Law May Cover Transgender

A federal judge in Pennsylvania has ruled for the first time that the Americans With Disabilities Act covers transgender employees.

While transgender status by itself is not considered a condition protected by the ADA, the judge held that employees are covered if they suffer from what is called “gender dysphoria.”

Recognized as an actual psychological ailment, gender dysphoria is defined as “clinically significant distress” experienced by some people whose gender identity does not match their sex assigned at birth.

The suit was brought by a transgender female against her former employer, Cabela’s sporting goods store, alleging that it discriminated against her and failed to accommodate her gender dysphoria by requiring her to use the bathroom corresponding to her birth sex, which was male.

She also said Cabela’s refused to provide her with a female name tag and a female uniform, subjected her to a “pattern of antagonism,” and then fired her in violation of the ADA.

The ADA explicitly excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs.”

However, the judge found that gender dysphoria causes “clinically significant stress and other impairments that may be disabling,” which can be separated from the law’s exclusions.

“Employers should be aware that at least one federal court says that gender dysphoria is an ADA protected disability that may require reasonable accommodation,” says Robin Shea, partner with the law firm of Constangy Brooks Smith & Prophete.

“It will be interesting to see whether any other courts follow, or whether the U.S. Court of Appeals for the Third Circuit will agree,” she adds.

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