A Deep Dive Into the Biden Administration’s Outrageous Attempt to Skirt the Plain Text of the ADA

You don’t have to be a disabled lawyer as I am to see the problems with this position … but it helps.

The announcement came in this post on Twitter/X:

Justice Department Files Statement of Interest in Lawsuit Concerning Treatment for Gender Dysphoria in Correctional Settingshttps://t.co/OqTvwElWYp pic.twitter.com/wxYK9rnVQK

— DOJ Civil Rights Division (@CivilRights) January 8, 2024

If you follow the link, you get this statement from the Civil Rights Division:

The Justice Department today filed a statement of interest in a lawsuit brought in the U.S. District Court for the Northern District of Georgia challenging the denial of treatment sought for gender dysphoria in a correctional setting. The statement explains that gender dysphoria falls within the Americans with Disabilities Act (ADA)’s definition of ‘disability’ and affirms that correctional institutions cannot deny medically appropriate care for people with gender dysphoria, no matter their particular circumstances, consistent with the Eighth Amendment.

‘People with gender dysphoria should be able to seek the full protections of the American with Disabilities Act, just like other people with disabilities,’ said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. ‘We are committed to ensuring constitutional conditions inside our jails and prisons so that those detained inside these facilities, including people with gender dysphoria can live safely and receive needed medical care. The U.S. Constitution requires that people incarcerated in jails and prisons receive necessary medical care, treatment and services to address serious medical conditions.’

Doe, an incarcerated transgender woman, alleges that the Georgia Department of Corrections (GDC) has violated her rights under the ADA, the Rehabilitation Act and the U.S. Constitution by denying necessary medical care to treat her gender dysphoria. Gender dysphoria is a serious medical condition that arises when a person experiences significant distress or impairment because of an incongruence between their gender identity and assigned sex. Left untreated, individuals with gender dysphoria can experience significant adverse mental health outcomes. Doe alleges that the GDC has denied her adequate medical treatment for her gender dysphoria, including gender-affirming surgery that has been recommended by four clinicians and consistent hormone therapy. Because of the inadequate care and exacerbation of her gender dysphoria, Doe has engaged in repeated self-harm, including attempts at suicide and self-castration. Doe seeks a preliminary injunction that would grant her access to medically necessary treatment for her gender dysphoria. 

‘The protections of the U.S. Constitution and the Americans with Disabilities Act do not stop at the doorsteps of our jails and prisons,’ said U.S. Attorney Ryan K. Buchanan for the Northern District of Georgia. ‘Our office remains committed to ensuring that all people with disabilities, including those with gender dysphoria, continue to receive access to such medically necessary treatments, even while they are in custody.’

The department’s statement of interest clarifies that gender dysphoria can be a covered disability under the ADA and does not fall within the ADA’s exclusion of gender identity disorders. The department’s statement also explains that prison officials violate the Eighth Amendment when they categorically refuse to provide medically necessary gender-affirming surgery to incarcerated individuals with gender dysphoria, no matter a person’s particular circumstances.

The Justice Department plays a central role in advancing the ADA’s goals of equal opportunity, full participation, independent living and economic self-sufficiency for people with disabilities. For more information on the ADA, please call the department’s toll-free ADA Information Line at 1-800-514-0301 (TTY 1-833-610-1264) or visit www.ada.gov.

Now, you can’t see it above, but in the statement there was a link to a website about the ADA, and if you clicked on it and then dug around a little, you could find a complete copy of the ADA. And if you did a Control-F search for the words ‘gender identity disorders’ you would eventually find this highly inconvenient text in the statute:

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Sec. 12211. Definitions

(a) Homosexuality and bisexuality

For purposes of the definition of ‘disability’ in section 12102(2) of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter.

(b) Certain conditions

Under this chapter, the term ‘disability’ shall not include

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(2) compulsive gambling, kleptomania, or pyromania; or

(3) psychoactive substance use disorders resulting from current illegal use of drugs.

Let me back up for a moment. As a general rule, there is no such thing as ‘protected classes’ in our civil rights laws—there are exceptions, but that is the general rule. For instance, Title VII of the Civil Rights Act of 1964 (in its amended state) says this:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

So, the people who think that white people are not protected by these laws are simply wrong. For instance, one white employee was awarded over $25 million dollars based on discrimination she faced at the hands of Starbucks.

Now, in popular thought, the ADA is not thought of as Civil Rights legislation. But it is. And it is one of the few that does create a protected class. It’s primary instruction is not to (irrationally) discriminate against disabled people. Requirements like providing reasonable accommodations come from that command.

For instance, when discussing how disabled people are treated in employment, the law says:

(a) General rule

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

As you can see, this means that only disabled people can successfully sue under this law. I’ll come back and explain why I think that makes a certain amount of sense in a moment, but keep that in mind.

But, of course, the ADA is more famous for its requirement of reasonable accommodations. But the ADA brings in that concept as a requirement for how to treat disabled people equally. In the same section, they discuss how to interpret this law as follows:

As used in subsection (a) of this section, the term ‘discriminate against a qualified individual on the basis of disability’ includes— …

(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or

(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant[.]

That’s not all of it, because if you actually picked through that section, well … it is a lot, and I don’t want to flood you with information. But it basically comes down to the idea that if an disabled person can do the job with or without reasonable accommodations—which that do not impose an undue burden on the employer—then the employer cannot discriminate based on their disability. And the statue goes deeper into what counts as an undue burden. Cost is a huge factor, but it also recognizes that sometimes an accommodation changes too much. Like if a paraplegic wanted to force the UFC to put all of its fighters in wheelchairs, I’m pretty sure that would be laughed out of court on the theory that this would be fundamentally changing the nature of the UFC.

When the ADA first came out in 1990, the reasonable accommodation requirement was also seen as something strange and different and alien to civil rights law … except it wasn’t. It actually showed up in the Civil Rights Act of 1964. If you go back and read that section of Title VII that I just quoted from, you will notice that it also prohibits discrimination based on religion. But anyone with more than two brain cells to rub together would understand that it would be very easy to discriminate based on religion without saying it is based on religion.

For instance, imagine an employer hates Jews. Sadly, that is easy to imagine right now. The employer doesn’t want to explicitly discriminate against Jews, so instead he says ‘I am now requiring all of my employees to work on Saturday. And I am prohibiting them from wearing any kind of headwear.’ As one might know, more orthodox Jews will not work at all from sundown on Friday, until sundown on Saturday, and often believe they have to have some kind of head covering, hence why you see many of them wear yarmulkes. I also know many Jews who claim that they don’t have to do that sort of thing and it’s not my place to tell them how to interpret their religion. Still, that would seem like a sneaky way to exclude many Jews without officially saying you are excluding Jews, if you were a person who was bigoted against them.

So that is why 42 U.S. Code § 2000e defines ‘religion’ in part as follows:

The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

So, if you discriminate against an employee because he believes God told him to take Saturday off (or Sunday, for that matter), or because he or she believes their faith requires them to keep their heads covered, that is discrimination based on religion, unless you can show that accommodating that religious practice would cause an undue hardship. That means that most employers couldn’t get away with banning all headwear, but that last bit would protect employers who really need all hands on deck on a Saturday or Sunday.

And, to return to the ADA, I think that is also why the ADA protects only disabled people from discrimination, instead of protecting everyone from discrimination based on whether or not they have a disability. The problem is if you have a reasonable accommodation requirement and protect nondisabled people equally, then every time an entity provides an accommodation to a disabled person, a non-disabled person could sue claiming that not providing the accommodation to them is also discrimination. Thus entities would be faced with a damned if you do, damned if you don’t situation—even if the suit by the non-disabled person is doomed to fail.

A pretty good paradigmatic example comes from one of my own disabilities: Dysgraphia. I have more than one disability, but let’s focus on that for a moment. Dysgraphia is learning disability and the term covers more than one condition. In my case, it is a disability in fine motor skills, which adds up to it being very hard to write by hand. I have been clocked at about four times slower than most people when I print and twelve times slower when I attempt to write in cursive.

But a sharp-eyed reader might’ve notice that caveat: by hand. Apparently, typing involves gross motor skills and therefore, I am pretty much normal when I type.

So, pretty much ever since laptop computers have been a thing, I have been allowed to use them in order to accommodate that disability. And believe it or not, there was resistance to that. But very often the reasonable accommodation requirement adds up to nothing more than ‘lighten the hell up.’

But if the ADA also protected non-disabled people from discrimination, then all the other students could sue because they are not also allowed to have laptops. Mind you, I don’t think schools should stop anyone from using laptops (although reasonable security measures are justified), but the question is if litigation is the answer.

And to get further away from the law for a moment, I would like to talk about the philosophy of the law. You might believe that there is a contradiction between my being a semi-libertarian conservative and being a staunch supporter of laws like the ADA. But I have long felt that there was a powerful, underappreciated conservative argument for laws such as the ADA that goes something like this.

There are only three ways of dealing with those who are disabled.

The first is extermination–to either kill them or let them die. ‘Kill all cripples,’ Adolf Hitler said, calling them ‘useless eaters’ before a ‘cripple’ (FDR) smote him. I don’t say that to go all Godwin’s Law on you, but I mention it because logically this is one of the options, and because conservatives themselves recognize that this really isn’t an option they would ever consider. But then there are only two other options remaining.

The second option is dependency—which might be dependency on the government or dependency on private charity, such as a church, or just the charity of a family giving you free room and board well beyond the age of emancipation. It is a life of consuming goods but contributing little (materially) to the society.

And the third option is independence. And that means going out and getting a job and living on that salary. But very often that requires a regime of accessibility and even accommodation of disability—not to mention protection from pure prejudice—so that the disabled person can go out into the workforce and be a producer and not just a consumer—giving lie to the Hitlerian claim that we are just ‘useless eaters.’ Reagan once famously quoted the proverb that if you give a man a fish he will eat for a day, but if you teach him how to fish he’ll eat forever. I would mangle that phrase as follows: If you give a paraplegic man a fish he will eat for a day, but if you make the docks wheelchair accessible, he will eat forever.

Yes, that does imply government intrusion in the form of accessibility requirements and lawsuits when people refuse to provide reasonable accommodations or engage in outright discrimination. I am also sure that this well-intentioned law, like all well-intentioned laws, can be abused from time to time. And those are both features that go against the grain of conservative thought. But it also isn’t terribly conservative to have a significant portion of our population who is capable of working being forced into dependency. Accommodations and accessibility is not only economically efficient, but it grants to those disabled persons the simple dignity that many people take for granted: Of living independently, based on the money you made working for a living.

And that move from dependence to independence is quintessentially conservative.

In any case, to go back to the letter of the ADA, because the ADA only covers disabled people, there needs to be a definition of disability. Now, the definition of disability is a little complicated and I don’t want to get into those weeds. But the key thing to get is this is where that inconvenient provision I mentioned comes in. Just so you don’t have to scroll up, it says:

(a) Homosexuality and bisexuality

For purposes of the definition of ‘disability’ in section 12102(2) of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter.

(b) Certain conditions

Under this chapter, the term ‘disability’ shall not include

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(2) compulsive gambling, kleptomania, or pyromania; or

(3) psychoactive substance use disorders resulting from current illegal use of drugs.

In other words, this was put in to explicitly take those conditions out of the ADA. And here is the Biden Administration trying to ignore that inconvenient text.

To be fair, they do have (ridiculous) precedent for this. In Williams v. Kincaid, 45 F. 4th 759 (4th Cir. 2022), the increasingly ludicrous Fourth Circuit essentially read the section out of the ADA because the people who wrote the ADA supposedly didn’t understand the science or something.

But in fact, this language in the ADA actually should have a larger impact than that, if the courts were interested in getting things right. To understand why, you have to understand a concept called ‘legislative dialogue.’

Or perhaps I would be wiser to call it something like ‘judicial-legislative dialogue.’

I mentioned above that Title VII of the Civil Rights Act of 1964 protects all races against racial discrimination on the face of it, but you might be aware of a judicially-created exception: Affirmative action. One of the early cases dealing with that was United Steelworkers v. Weber, 443 U.S. 193 (1979). In that case, the court said that Title VII allowed affirmative action based on race within limits because Congress wanted to see more black people get jobs, or something. It’s very thin reasoning, honestly because the rational answer would be to say ‘if you stopped employers from discrimination, then black employment would rise naturally.’ But it is what the Supreme Court said.

Years later, in Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616 (1987), they dealt with an affirmative action program based on sex and they reasoned that Congress must be happy with what they ruled in Weber, because they had no done anything to change the law. To reach that conclusion, they quoted a professor I once had, Guido Calabresi:

As one scholar has put it, ‘When a court says to a legislature: `You (or your predecessor) meant X,' it almost invites the legislature to answer: `We did not.' ‘ G. Calabresi, A Common Law for the Age of Statutes 31-32 (1982). Any belief in the notion of a dialogue between the judiciary and the legislature must acknowledge that on occasion an invitation declined is as significant as one accepted.

Thus, the Supreme Court said that because Congress hadn’t tried to change the decision in Weber, they must’ve gotten it right:

Weber, for instance, was a widely publicized decision that addressed a prominent issue of public debate. Legislative inattention thus is not a plausible explanation for congressional inaction. Furthermore, Congress not only passed no contrary legislation in the wake of Weber, but not one legislator even proposed a bill to do so. The barriers of the legislative process therefore also seem a poor explanation for failure to act. By contrast, when Congress has been displeased with our interpretation of Title VII, it has not hesitated to amend the statute to tell us so. For instance, when Congress passed the Pregnancy Discrimination Act of 1978, 42 U. S. C. § 2000e(k), ‘it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in [General Electric Co. v. Gilbert, 429 U. S. 125 (1976)].’ Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 678 (1983). Surely, it is appropriate to find some probative value in such radically different congressional reactions to this Court's interpretations of the same statute.

To unpack that a little more, the Supreme Court is referring to prior cases dealing with discrimination against pregnant women. If an employer fires a woman for being pregnant, is that discrimination because of sex prohibited by Title VII? In the Gilbert case, the Supreme Court said that it was not discrimination based on sex, and therefore that discrimination was legal.

And then Congress stepped in and amended Title VII to explicitly protect pregnant women from discrimination. The current definition says the following:

The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e–2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

In Newport News, this was seen as not just changing the law. Rather

[w]hen Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision.

In other words, Congress told the Supreme Court they not only got the wrong result, but they got there the wrong way.

So, if this theory of interpretation is endorsed by the Supreme Court in Johnson, what does it imply that when the ADA was first introduced in 1990, it included this section specifically saying that this civil rights statute didn’t apply to transgender issues, and it also did not protect gay persons? Indeed, the ADA was amended significantly in 2008, but that part was left alone.

You see, the Supreme Court has recently said in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020) that Title VII protected gay people and transgender people from discrimination, because they claimed this is discrimination based on sex. How did they reach that conclusion? Let’s take each issue separately. Let’s start with how discrimination against gay people was seen as sex discrimination by the court:

Imagine that a man comes to an office Christmas party. The boss asks where his spouse is, and he says ‘Sam is parking the car and will come in, in a moment.’ Now imagine two scenarios.

In the first, Sam comes in, and it turns out Sam is a woman whose actual name is Samantha. The boss greets her and everyone has a pleasant evening with no fallout.

The second scenario, Sam turns out to be Samuel and the boss is repulsed that the man is married to another man and fires him.

The reaction of that boss depends on the sex of the person the man is married to, therefore that is discrimination based on sex.

As for transgender issues, imagine if an employee named Sam wears a dress to work. If Sam is Samantha, that is not likely to cause any problems, but if Sam is Samuel and Samuel is fired for this, then Samuel is fired not for wearing a dress but because he is a man wearing a dress. The Supreme Court argued, therefore, that was discrimination based on sex.

It’s all pat and cute, but it really ignores that the people who wrote the law didn’t really think of these kinds of things as sexual discrimination. Indeed, even today the statute only talks about ‘women affected by pregnancy’ when protecting women from discrimination based on pregnancy and so on. The people who wrote Title VII didn’t think that a man was capable of getting pregnant, thus to them trans men weren’t really men. Combine that with the ADA instructing Congress not to interpret that law as protecting gay people or trans people, and it seems like the Supreme Court’s decision in Bostock was wrong, by the very theory of judicial-legislative dialogue they used to uphold affirmative action in Johnson.

Therefore, if the Courts really want to get it right, not only to they have to obey the instructions in the ADA to exclude gay and transgender persons from the protection of that law, they have to do the same for other civil rights laws, including the Civil Rights Act of 1964. Realistically, I’m not holding my breath waiting for the Supreme Court to admit it got things wrong, but that is what it should do.

And, maybe if someone gets them to understand they got this wrong, they will make sure they don’t take that decision in Bostock any further. For instance, it’s one thing to say a man can wear a dress to work. It is another to say that everyone has to use his or her preferred pronouns, or that a man who says he is a woman is entitled to go into a women’s restroom.

And none of that adds up to me saying that we should actually discriminate against such persons, just that if I was the one charged with interpreting the law—like if the Supreme Court had one justice and it was me—that is how I would interpret it.