Kate Lynn Blatt, the Pennsylvania trans woman allegedly harassed by coworkers and then fired from a Cabela’s sporting goods store nearly eight years ago, has this month taken an uncoventional route in her antitrans discrimination lawsuit: suing under both a more common Title VII claim and the American Disabilities Act, reports The Legal Intelligencer.
Blatt first announced that she would file a federal lawsuit against Cabela's last September, after receiving notice from the Equal Employment Opportunity Commission in June that she had grounds for a lawsuit.
Title VII of the Civil Rights Act of 1964, part of which bans “sex discrimination,” has been increasingly used with success in claims of trans workers being mistreated by employers or coworkers because of their gender identities. In December, Attorney General Eric Holder announced that his Department of Justice would begin prosecuting alleged antitrans discrimination under Title VII, construing such treatment as sex-based discrimination.
But as Blatt’s case shows, some trans employees may also be able to make the case that workplace discrimination is a violation of the Americans With Disabilities Act. The possibility has simply gone untested until now.
The ADA is a civil rights law that bans discrimination based on both physical and mental disabilities and requires employers to offer reasonable accommodations to differently abled workers. Since 1989 the ADA's protections have explicitly excluded behavior deemed "immoral," including "transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders."
Yet conventional social approaches to trans identities have increasingly moved away from the "moral" implications of being trans, much like earlier shifts in public discussions about the nature of homosexuality.
Further, as transgender people are often given a formal psychological diagnosis of "gender dysphoria" in order to qualify for trans-related medical care, affirming trans workers' gender identity in workplace accommodations may fall under the ADA's far-reaching protections, Blatt's suit contends. While many do not consider being trans a "disability" in a strict sense, the ADA's broader legal definition may include protection for trans-related diagnoses if morality were removed from consideration.
This week Blatt's lawyers filed a first-of-its-kind brief that directly contests the constitutionality of the ADA’s exclusion of trans protections. Attorney General Holder now has 60 days from the time he received notice of the suit to respond.
Blatt, for one, has argued that she should not have been forced to use the men's bathroom at work and not been subjected to harassment from coworkers who allegedly called her a "ladyboy," "fag," "freak," and "sinner," according to the Intelligencer. She also contends that management was outright hostile to her, fighting her on such things as the right to wear a gender-appropriate uniform and having a name tag that reflected her true identity, even after Blatt updated her gender marker on her legal identification.