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.
Kevin M. Barry,
Disabilityqueer: Federal Disability Rights Protection for Transgender People,
Yale Hum. Rts. & Dev. L.J.
Available at: https://digitalcommons.law.yale.edu/yhrdlj/vol16/iss1/1