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When Anti-Discrimination Law Discriminates: A Right to Transgender Dignity in Disability Law

By Katie Aber

The Americans with Disabilities Act of 1990 (ADA) and its subsequent amendments in 2008 provided comprehensive protection against discrimination based on actual or perceived disabilities. In a compromise necessary to pass the bill, however, the drafters excluded certain disorders deemed to be morally reprehensible, including gender identity disorders. Gender identity disorder, which has since been reclassified in the Diagnostic and Statistical Manual of Mental Disorders as gender dysphoria, describes the distress experienced by transgender individuals as a result of the incongruence between their gender identity and their biological sex. While not all transgender individuals have gender dysphoria, gender dysphoria is exclusively associated with transgender people. Unlike many of the other disorders excluded from protection under the ADA, gender dysphoria neither involves criminal conduct nor causes harm to oneself or others. This Note argues that the exclusion of gender dysphoria from the ADA violates the dignitary rights of transgender individuals because it stigmatizes and demeans them by refusing to apply the broad, almost universal, definition of disability established by the Act to gender dysphoria. The result is that transgender individuals are ineligible to seek access to anti-discrimination protection that they might otherwise qualify for under the ADA. This Note considers the Supreme Court’s analysis of dignity in recent gay-rights jurisprudence, asserts that the Supreme Court recognizes dignitary rights, and argues that the ADA’s exclusion imposes a dignitary harm on all transgender people. This Note concludes that, because the exclusion of gender identity disorder is based on animus, which the Supreme Court has held to lack a rational relationship to a legitimate state interest, the provision is unconstitutional.

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