The magazine of the Employee Assistance Professionals Association
3rd Quarter 2019 | VOL. 49 NO. 3
Transgender Support Part I
|Page 6
Bonus! Read Cover Story for PDH!
PLUS:
Guidelines for Transgender Employees Page 10
The EAP Role in Fitness for Duty Page 22
Digital Archive Notes 6th Anniversary Page 28
coverstory Transgender Support (Part I) Is Gender Dysphoria a Disability under the ADA?
| By Robin Sheridan, JD, MILR; & Heather Mogden, JD
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o court has definitively held that gender dysphoria—the diagnosis associated with transgenderism—is a disability under the Americans with Disabilities Act (ADA), but two federal courts in Massachusetts and Pennsylvania have said it could be, which is legally significant. The parties in those cases have settled their disputes, so there may not be a final answer in the near future, but the idea that a transgender employee’s ADA claims can survive early dismissal will likely impact how readily employers provide reasonable accommodations on the basis of gender dysphoria. The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) introduced the term gender dysphoria (GD) as a diagnosis for people whose gender at birth is contrary to the gender with which they identify. This diagnosis, revised from gender identity disorders in the DSM-IV, requires attendant disabling physical symptoms, in addition to manifestations of clinically significant emotional distress. The ADA defines disability as a physical or mental impairment that substantially limits a major life activity, a record of such an impairment or being regarded as having such an impairment. The ADA specifically excludes from this definition “gender identity disorders not resulting from physical impairments.” (Editor’s note: Discrimination is further defined at the conclusion of this article.)
tions that are not considered disabilities and which shows at least arguable animus toward transgender persons. For instance, rather than grouping gender identity disorders in subpart (a) with homosexuality and bisexuality, the ADA groups gender identity disorders in subpart (b) with pedophilia, voyeurism, kleptomania, pyromania, and illegal drug use. Assuming the exclusion is constitutional, transgender plaintiffs have pointed to physical impairments underlying GD to distinguish the diagnosis from excluded “gender identity disorders not resulting from physical impairments.” For example, the plaintiff in the Massachusetts case mentioned earlier described GD as a physiological disorder or condition affecting the endocrine system because a person born with GD has circulating hormones inconsistent with their gender identity. Transgender persons who transition from their birth gender to their gender identity require lifelong medical treatment, including the administration of male or female hormones, which leaves them incapable of reproduction—a major life activity. The Pennsylvania plaintiff additionally argued that the condition substantially limits other major life activities such as interacting with others and social and occupational functioning. Those courts found that the asserted characteristics of GD could satisfy the ADA definition of a disability and denied the defendants’ motions for dismissal based on the ADA exclusion of gender identity disorders. So far, only an Ohio federal court has disagreed, finding instead that gender dysphoria falls squarely within the ADA’s disability exclusion. In terms of what is trending, it is worth mentioning that the argument that GD is a disability is consistent with the fairly well-known body of case law holding that prison officials engaged in cruel and unusual punishment of transgender prisoners (in violation of their Eighth Amendment rights), when the officials denied them hormone therapy and/or gender reassignment surgery, which the courts interpreted as a denial of necessary medical care to treat a diagnosed condition.
Is Exclusion Constitutional? Notably, there is an open question as to whether this exclusion itself is unconstitutional because it discriminates against transgender persons—a historically marginalized group. Without deciding the issue, courts have noted that “the continuing re-evaluation of GD underway in the relevant sectors of the medical community” is quite different from “gender identity-based disorders as they were understood by Congress twenty-eight years ago,” when the ADA was enacted. The constitutionality argument is based in part on the ADA’s two-part exclusion list, which identifies condi6
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Additionally, the U.S. House of Representatives recently passed a bill that would specifically add sexual orientation and gender identity to federal anti-discrimination laws, though the bill is not expected to become law. A change in law may not be necessary, however, as the United States 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 trend, both socially and legally, is leaning toward recognition and resolution of unique transgender issues.
in this regard, helping to build the relationship between the organization and the transgender employee. NEXT TIME: ADA requirements and assisting clients in interactive accommodation discussions. 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. v
When a client suggests that workplace barriers exist due to GD, EA professionals will want to keep a few things in mind:
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.
Maintain Confidentiality Like any other disability-related diagnosis, gender dysphoria is not to be disclosed or discussed by the EA professional or the employer—even when, and regardless of whether, it may seem to be public knowledge within the organization. Situations may arise where employees’ legal, financial, or work documents reflect their birth name, but they prefer to be identified socially by a different name altogether. If an employee requests that his or her file reflect a name different from his or her legal name, the lowest risk option is to accommodate the request and maintain the confidentiality of the discrepant legal and financial documents.
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.
Use 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.” Intentional misgendering, and even persistent accidental misgendering, could form a basis for claims of harassment, discrimination, and creation of a hostile work environment. 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 7 | W W W . E A PA S S N . O R G | •• • • • • • • • • • • • • • • • • • •
| JOURNAL OF EMPLOYEE ASSISTANCE | 3rd Quarter 2019 |