Disabilityqueer: Federal Disability Rights Protection for Transgender People

Abstract

The Americans with Disabilities Act 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 are 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 intact. 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.