Sarah A. Scott

The article “Gender Identity, Disability and Discrimination in a Changing Workplace,” appearing in the June 2017 issue of Valley Lawyer,  claims employers need not accommodate transgender employees seeking accommodation for disability based upon diagnoses of gender dysphoria (GD). The rationale is that GD is synonymous with gender identity disorder (GID), which is excluded as a disability by the Americans with Disabilities Act (ADA); and that GD is also a sexual behavior disorder, which is excluded by California’s Fair Employment and Housing Act (FEHA).

GD is not synonymous with GID, and it is not a sexual behavior disorder, and, therefore, it is not excluded by either the ADA or FEHA. Recent changes in law are merely the tip of an iceberg of fundamental change occurring in the world’s legal, medical, and societal landscapes concerning gender identity.
Transgender identification (identifying as a gender other than the one assigned at birth) was once considered mental illness, and GID was the diagnosis given therefor. By 2012, however, the American Psychiatric Association removed GID from its Diagnostic and Statistical Manual of Mental Disorders (DSM) when the DSM5¹ replaced the DSM 4.²

Simultaneously, GD, included in the DSM 5, became the diagnosis a transgender person “might” receive “if” she experienced significant distress (dysphoria) because of the “incongruity” between the gender with which she identified (her true gender) and the gender assigned to her at birth (usually based upon biological sex).³ This temporal connection between GID’s removal, and the emergence of GD as the primary diagnosis a transperson might receive, led many to believe the diagnoses were synonymous. They were not. The change represented a substantial shift in understanding gender identity.

The problem, if any, was no longer considered to be in the transgender identification, but in the incongruity. Therefore, the solution, with which even dissenters might begrudgingly agree, moved from conversion type therapy to transition, the process through which a transperson transforms her body, and or gender role in society, to more closely match characteristics traditionally associated with her true gender, usually, but not always, opposite the gender assigned her at birth.⁴

GD, on the other hand, recognizes that, although many transgender people do not experience distress related to gender incongruity, some do. And when this distress becomes clinically significant, a GD diagnosis may follow.

Caveat: GD appears to be in the process of being replaced, and may now exist more to provide transgender persons access to transition related healthcare, such as cross hormone replacement therapy and gender reassignment surgery, than to indicate clinical distress. This may be inferred from the conclusions reached by mental health professionals conducting a comprehensive study for the reclassification of gender related diagnoses for the World Health Organization’s International Classification of Diseases (ICD), the code book of diagnoses insurers use to pay healthcare provider claims.^{5 6} As a result, when the ICD is updated in 2018, it is expected to eliminate GID altogether, and include “gender incongruity,” which is expected to be listed as a medical rather than psychological diagnosis. This more accurate description and classification should help the transgender community because it simultaneously eviscerates the stigmatization associated with mental illness while providing access to insurance coverage for transition related healthcare.

So, if there is no disorder in the transgender identification, the transgender identification must be in order, yes? Yes. Put simply, transgender women are women and transgender men are men, despite that they may have been born with trans genitalia. If you find this incredible, consider suspending your disbelief through the end of this article. It really is the key to understanding all the change.

Let’s look at Blatt v. Cabela’s Retail, Inc.⁷ Plaintiff Kate Lynn Blatt is a transgender woman who struggled her entire life trying to live as a male. Sometime after graduating high school, she gave up, came out, and began transitioning. Immediately, she was fired from her job at a battery factory. Kate Lynn was lucky, though, as transpersons go, and she got another job. She was able to find employment at Cabela’s Retail, Inc.’s 250,000-square foot outdoor megastore. Sometime prior to beginning work there, Kate Lynn was diagnosed with GD.

In her complaint, Kate Lynn alleged, inter alia, that while working at Cabela’s her requests to use the women’s employee bathroom were repeatedly denied, and that she was forced instead to use the men’s room, then later a for-customers family bathroom at the front of the store; that her requests for a name tag calling her Kate Lynn were also repeatedly denied, and that she was forced to wear one calling her James, her birth name, even after she legally changed her name and gender marker. Finally, she alleges, she was fired in retaliation for these requests, which she argued constituted reasonable requests for accommodations for her GD diagnosis.

Kate Lynn sued for, inter alia, violation of the ADA’s rule requiring an employer to reasonably accommodate an employee’s disability. Cabela’s filed a motion to dismiss this claim arguing GD did not constitute a disability pursuant to the ADA because GD is synonymous with GID, which is expressly excluded by the ADA. Interestingly, even Kate Lynn’s own lawyers referred to GD as “aka” GID in her complaint.

U.S. District Judge Joseph F. Leeson, Jr. was not thrown far by the confusion, though, and, in what is now being called a landmark decision, made two important findings. First, Judge Leeson distinguished GD from GID, writing: “[I]t is fairly possible to interpret the term gender identity disorders narrowly to refer to the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons [who identify as transgender] … may have—such as … gender dysphoria, which substantially limits … life activities … Accordingly, Blatt’s condition is not excluded by §12211 of the ADA…”

Second, Judge Leeson distinguished GID from sexual behavior disorders, writing: “The legislative history shows Congress discussed the §12211 exclusions in terms of two distinct categories. First, there was concern … the bill would include … [gender] identity as a disability or protected class… [citations] Second, there was separate concern that the ADA ‘could protect individuals from discrimination [based on] … socially unacceptable, often illegal, behavior … such as compulsive gambling, pedophilia, and kleptomania.” [citations]. “[C]abela’s motion to dismiss Blatt’s ADA claims … is denied.”

“Being transgender or transsexual (transsexuals⁸ are a subgroup of the transgender community) does not indicate mental illness, and is not and never was, in any way, a sexual behavior disorder.”

Judge Leeson’s findings—that GD and GID are not synonymous, and that being transgender is not a sexual behavior disorder—may not be binding authority in a California court, but his analysis is accurate, and it constitutes persuasive, sound reasoning, and, considering there is no contrary authority anywhere, should be determinative. Thusly, justly, and correctly, GD may constitute a disability pursuant to both the ADA and FEHA. Therefore, an employer may violate both the ADA and FEHA by failing to reasonably accommodate a transgender employee seeking accommodation for GD.

Caveat: Until GID is removed from the ICD in 2018, it is possible to encounter an employee [improperly] diagnosed with GID litigating an ADA claim against an employer arguing the GID exclusion. In this case, misdiagnosis may be argued. That is, although the employee was diagnosed with GID, she should have been diagnosed with GD, additionally or alternatively, because any mental suffering based on gender incongruity is properly so diagnosed. Also, the ADA and FEHA permit claims based upon perceived disabilities. That is, an employer may violate the ADA and FEHA by acting adversely toward an employee he perceives has a disability, whether or not the employee does.

With respect to transgender workplace rights, federal protections are under fire by the Trump administration. Title VII of the Civil Rights Act of 1964 (Title VII), provides employees protection against, inter alia, employment discrimination based upon sex.⁹ These protections have been held to extend to LGBTQ employees on the basis of sexual orientation and gender identity.^{10 11} Attorney General Jeff Sessions’ Dept of Justice, however, has filed one of a plethora of amicus briefs in Zarda v. Altitude Express, Inc., scheduled to be heard by the Second Circuit Court of Appeals on September 26, 2017.¹²

The sole issue to be determined therein is: “[W]hether Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation through its prohibition of discrimination ‘because of . . . sex.”¹³ In its amicus brief, the DOJ argues that the law does not prohibit discrimination based on sexual orientation. Although sexual orientation and gender identity are completely independent,¹⁴ the court’s holding will almost certainly affect Title VII’s applicability to gender identity.

California law, on the other hand, is clear. FEHA provides strong protections to transgender employees. For example, trans-employees have the right to be addressed as ma’am or sir, and to be referred to with pronouns, consistent with their gender identity. They may also use the bathroom(s) any other employee of their gender identity may use, whether there is a gender-neutral, single stall bathroom available, and regardless of whether they have begun medical transition or legal name and gender marker change.¹⁵

In other words, transgender employees have all rights cisgender¹⁶ employees have subject to a narrow bona fide occupational qualification (BFOQ), which, where applicable, must be raised as an affirmative defense.

“Privacy concerns will not justify discriminating against transgender employees because their sex assigned at birth differs from the sex required for the job, unless: 1) the job requires observing others nude or conducting body searches; and 2) it would be offensive to prevailing social standards to have individuals of a different sex present; and 3) it is detrimental to the mental or physical welfare of individuals being observed or searched to have someone of a different sex present.”¹⁷

All three prongs must be met for a valid defense. So while it may be legal for an employer to discriminate by hiring a cisgender woman over a transgender woman to conduct body searches of women, it may be illegal to so discriminate when hiring a cisgender woman over a transgender woman to attend a women’s bathroom. This is because a bathroom attendant is not required to observe women nude, regardless of whether it might offend prevailing social standards or be detrimental to anyone’s emotional welfare. Of course, it should not so offend or be detrimental; this author merely uses these hypothetical facts to show the narrowness of the BFOQ.

Caveat: The BFOQ statute does not distinguish between preoperative and post-operative transgender persons. Therefore, as written, the law would apply equally to both. But should an employer hiring a female to conduct body searches of females be allowed to discriminate against a transgender woman who has undergone sex reassignment surgery to make herself anatomically female? Does public policy dictate this fact makes moot elements two and three of the defense? It appears legislative correction and or clarification is in order. For now, however, it is up to California courts to address the issue if and when faced with it.

The original article argues, “… [if the Equality Act passes, and] an employee suffering from ‘gender identity disorder’ … is discriminated against because ‘her behavior failed’ to conform to gender norms… [she] may have suffered sex discrimination.”

When the Equality Act passes, as this author believes it will, it is virtually guaranteed that there will be no language describing transgender persons as “suffering from gender identity disorder” or “failing to conform” to anything. These words are hallmarks of an outdated and discredited ideology.

Employment discrimination against transgender employees can have devastating effects on transgender employees and on company bottom lines.¹⁸ Encouragingly, however, when transpersons are supported, they feel better, job performance improves, and bottom lines increase.¹⁹ If we simply remember that transgender women are women, and transgender men are men, despite that they were born with trans genitalia, things fall simply, neatly, and properly into place.

Trial lawyer Sarah A. Scott  practices in the areas of employee rights, including wrongful termination, discrimination, and wage and hour violations. Her office is in Encino. She also presents State Bar accredited elimination of bias MCLE training to lawyers and other professionals with respect to transgender rights and issues. She can be reached at sarah@sarahscottlaw.com.

¹ American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders DSM-5. Washington, DC: American Psychiatric Association.
² American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders DSM-IV-TR. Washington, DC: American Psychiatric Association.
³ Intersex babies are born with conditions causing reproductive or sexual anatomy to differ from typical definitions of female or male.
⁴ Alternate forms of gender are being recognized and accepted around the world. The District of Columbia and Oregon, for example, added an “X” option as an alternative to M or F for ID cards, and the California Senate recently passed SB 179, which may make California the third jurisdiction to include an alternate gender option.
⁵ Rebeca Robles et al., Removing Transgender Identity from The Classification of Mental Disorders: A Mexican field Study for ICD-11, THE LANCET PSYCHIATRY, July 26, 2016.
⁶ World Health Organization, International Classification of Diseases (ICD) Revision: Gender Incongruence of Adolescence or Adulthood Clinical Descriptions and Diagnostic Guidelines, 2017.
⁷ Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822, 2017 U.S. Dist. LEXIS 75665 (E.D. Pa.).
⁸ A transsexual is a transgender person who has undergone, or will undergo, hormone replacement therapy and gender reassignment surgery.
⁹42 U.S.C. §2000e (LexisNexis, Lexis Advance through PL 115-51, approved 8/18/17).
¹⁰ Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th Cir. 2017).
¹¹ Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011).
¹² Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. N.Y. Apr. 18, 2017).
¹³ Zarda v. Altitude Express, Inc. (2d Cir. May 25, 2017, No. 15-3775) 2017 U.S. App. LEXIS 13127.
¹⁴ A transgender woman may be gay or straight. Straight means she is sexually attracted to men, regardless of whether she still has male genitalia.
¹⁵ Cal. Code Regs., tit. 2, §11029 (Lexis Advance through Register 2017, No. 33, August 18, 2017).
¹⁶ Cisgender denotes an individual who identifies as the gender she was assigned at birth.
¹⁷ Cal. Code Regs., tit. 2, §11031 (Lexis Advance through Register 2017, No. 33, August 18, 2017).
¹⁸ Brynn Tannehill, The Truth about Transgender Suicide, THEHUFFINGTONPOST.COM, Nov. 14, 2015, www.huffingtonpost.com/brynn-tannehill/the-truth-about-transgend_b_8564834.html.
¹⁹ Jaime M. Grant, Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman, and Mara Keisling. Injustice at Every Turn: A Report of the National Transgender Discrimination Survey. Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011.