In a shocking development, the U.S. Department of Justice has stated in a filing in an employment discrimination case that gender dysphoria has a physical cause.
Katie Blatt, a transsexual woman, claims adverse employment action based on transsexualism as a disability under the Americans with Disabilities Act (“ADA”). The ADA expressly excludes “transsexualism … (and) gender identity disorders not resulting from physical impairments” from coverage under the ADA (the “GID Exclusion”). The U.S. Department of justice submitted a statement of interest asserting that as a matter of statutory construction, Blatt’s gender dysphoria “falls outside of scope of the GID Exclusion because a growing body of scientific evidence suggests that it may ‘result from a physical impairment’.” The government is effectively advocating that the court hearing Blatt’s case not, for example, allow discovery on the issue of whether Blatt’s gender issues are related to a physical impairment, and instead rely on an unimpressive body of “evidence” that gender identity has a physical basis. The studies cited by the government include this literature review and this literature review, neither of which involves statistically significant evidence.
This is an example of government overreaching into private litigation between two litigants.