Since the Supreme Court recognized marriage equality in Obergefell v. Hodges, civil rights advocates have increasingly set their sights on transgender rights as the next legal frontier. Sex discrimination law, though an essential statutory tool, is not the only potential avenue for securing rights for transgender individuals. Another important federal source of protection for transgender people is disability rights law—in particular, the Americans with Disabilities Act (ADA). Disability rights law, unlike sex discrimination law, applies to public accommodations and government services, and also mandates reasonable accommodations. A transgender litigant successfully invoked the protections of the ADA for the first time in the recent case of Blatt v. Cabela’s Retail, Inc., where a federal court ruled that transgender people are not categorically barred from seeking relief under the ADA from discrimination based on gender dysphoria—the clinically significant distress that some transgender people experience. Importantly, the Department of Justice under both the Obama and Trump Administrations has similarly interpreted the ADA to cover such discrimination. This Essay explores why, for over twenty-five years, transgender litigants have not invoked the protections of the ADA—and why they now should. Blatt’s historic holding will reverberate beyond the facts of that case, setting the stage for ADA challenges to a broad range of discrimination against transgender people who experience stigma and bias associated with gender dysphoria.
Kevin Barry & Jennifer Levi, Blatt v. Cabela's Retail, Inc. and a New Path for Transgender Rights, 127 YALE L.J. F. 373 (2017).