Kevin M. Barry


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.