Disabilityqueer: Federal Disability Rights Protection for Transgender People

By Barry, Kevin M. | Yale Human Rights and Development Law Journal, Annual 2013 | Go to article overview

Disabilityqueer: Federal Disability Rights Protection for Transgender People


Barry, Kevin M., Yale Human Rights and Development Law Journal


The Americans with Disabilities Act (ADA) does not protect everyone. It notably excludes people with Gender Identity Disorder (GID), an impairment involving the misalignment between one's anatomy and gender identity. Many would say this is as it should be- gender nonconforming people are not impaired and so they should not be covered by disability law. But this argument misapprehends the reason that GID was excluded from the ADA in the first place.

GID was excluded from the ADA because, in 1989, a small handful of senators believed that gender nonconformity--like pedophilia, pyromania, and kleptomania-was morally harmful to the community. In the eleventh hour of a marathon floor debate, and in the absence of an organized transgender lobby, the ADA's sponsors and disability rights advocates reluctantly agreed to sacrifice GID and nine other mental impairments in exchange for passage in the Senate. The fact that Congress went out of its way to exclude GID, along with nine mental impairments that involve some harm to oneself or others, sends a strong symbolic message: people with GID have no civil rights worthy of respect. The ADA is a moral code, and people with GID its moral castaways.

In 2008, when Congress decided to expand the ADA's definition of "disability" to protect more people, things should have been different for people with GID. Sadly, they were not. Instead of removing the GID exclusion once and for all, Congress enshrined its moral opposition to people with GID by preserving the exclusion. The ADA's message to people with GID, and to the transgender community more broadly, is now clearer than ever: nearly twenty years after the passage of the ADA, people with GID are still despicable and even dangerous, and therefore undeserving of legal protection. The ADA's moral code remains.

In order to achieve true equality, transgender advocacy must rebut the moral case against transgender people. The ADA should play a prominent role in this project because the ADA's GID exclusion is the moral case against transgender people. The ADA should be righted once more through passage of a modest bill, the "ADA Inclusion Act," which removes GID from the ADA's list of excluded impairments.

I. INTRODUCTION

Rachel Maddow. Jerry Sandusky. Chaz Bono. Although the ADA Amendments Act of 2008 (ADAAA) expanded the ADA's definition of disability to include medical impairments that are not typically thought of as "disabling," (1) it left intact the exclusion of those who are gay, lesbian, or bisexual, those with pedophilia and other sexual disorders, and those who are transgender. (2) Many will say that this is as it should be.

Being gay, lesbian, or bisexual, after all, is not a medical impairment. In 1974, the American Psychiatric Association removed same-sex orientation from its standard classification of mental disorders, known as the Diagnostic and Statistical Manual (DSM). (3) Because same-sex orientation is not an impairment, the argument goes, it should not be covered by the ADA. Rachel Maddow, for example, who is openly lesbian and the host of MSNBC's primetime news show, "The Rachel Maddow Show," (4) is excluded from the ADA's definition of disability because she has no medical impairment. The ADA should no more protect her, one might reasonably argue, than it should protect people with brown eyes, short legs, or dark hair. (5) These are characteristics, not impairments, and therefore not the stuff of disability protection.

By contrast, pedophilia, the sexual attraction to prepubescent children, remains an impairment under the DSM and few would argue that it should not be. (6) But disability coverage for pedophiles is another matter; one might reasonably argue that the ADA should not extend to pedophiles because they threaten the safety of one of our most precious resources--our future. (7) Jerry Sandusky, for example, who is the former defensive coordinator for the Penn State football team and was arrested in 2011 for sexually abusing eight boys over a 15-year period, (8) has a medical impairment alright.

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