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.
U.S. Statement of Interest
Government_ Gender dysphoria has physical cause
Felipe Gonzalez Cortes lost his appeal for disability benefits and supplemental social security income pursuant to the Social Security Act, which was based in part on his gender identity.
Thomas L. Nowacki was denied supplemental security income by the Social Security Administration. An administrative law judge (“ALJ”) found Plaintiff had multiple severe impairments, including major depressive disorder, gender identity disorder, and intermittent explosive disorder, but retained the residual functional capacity (“RFC”) to perform work as a cleaner, injection molding machine operator, or poultry dresser. The ALJ thus found him not disabled. A federal court recently affirmed this decision.
Note that Nowacki asserted gender identity disorder as a basis for a finding of disability.
A transgender woman who alleged discrimination at a residential drug rehabilitation may proceed with her suit, Brooklyn Supreme Court Justice Debra Silber ruled. Sabrina Wilson, a male-to-female transgender woman, fled Phoenix House, a drug detoxification and rehabilitation center with facilities located throughout New York, including three in Brooklyn, after, according to a news report, “being denied the ability to fully express her female identity.”
Wilson, 32, was arrested in 2008 on a drug offense and agreed to enroll in a drug rehab center in lieu of prison. Having been diagnosed with gender identity disorder when she was 16, Wilson had struggled with her identity for years and had yet to make the physical transformation from male to female. Upon arriving at Phoenix House, Wilson made it clear to Phoenix House staff that while she is biologically male, she “identifies with the female gender.” Notwithstanding her gender identification, Wilson was required to use the male restrooms and sit with the male population during group sessions, because Wilson is actually male, and was told to remove her wigs, makeup and high heels despite the fact that biological women wear able to don such attire.
Wilson asserted that a counselor advised her that “”[w]e can’t suit your needs as a transgender in our program,” and a program that did “meet her needs” was not located by Phoenix House. Wilson subsequently fled Phoenix House and was sentenced to 2½ years in prison. Wilson then sued, alleging that Phoenix House discriminated against her based on her sexual orientation as well as her disability of gender identification disorder.
Silber deduced that Wilson encountered “gender discrimination” for failing to “conform to stereotypical gender norms.” Therefore, as transgender individuals “transgress society’s gender norms in some manner,” Silber said, they should be granted a higher level of protection against discrimination and afforded the court’s protection for “aid or redress.” It is not clear whether this was under a claim for sex discrimination or sexual orientation discrimination, as we could not obtain the decision.
Phoenix House proffered the argument that they could not have discriminated against Wilson because Wilson did not suffer from a disability and if, in the alternative, Wilson did possess a disability but it was not made known to Phoenix House. Silber dismissed this argument, stating that “[g]ender Identity Disorder is a disability under both the New York State Human Rights Law and the New York City Human Rights Law,” and therefore Wilson was afforded the protections of these relevant statutes.
Henry Crowe, who apparently also goes by Vivian Leigh Crowe, lost his claim for Supplemental Security Income.
Terrence Wimbley, a transgender woman, applied for social security and supplemental security income benefits that were denied. On appeal, WImbley argued, among other things, that Social Security Administration failed to consider her gender identity disorder in making its determination that she did not qualify for benefits. A federal court denied her appeal, noting that Wimbley provided no proof that she had ever been diagnosed with GID, and she did not claim GID as an impairment in her application for benefits or during the hearing.
Margaret O’Hartigan unsucessfully sued her former employer for disability discrimination based on her transsexualism.
ESPER FRENCH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Civil Action No. 4:12-cv-12835
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
March 12, 2013, Decided
REPORT AND RECOMMENDATION TO
DENY PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT  AND GRANT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 
Plaintiff Esper French appeals Defendant Commissioner of Social Security’s (“Commissioner”) denial of her applications for disability insurance benefits and supplemental security income. ( See Dkt. 1, Compl.) Before the Court for a report and recommendation (Dkt. 3) are the parties’ cross-motions for summary judgment (Dkts. 12, 14). For the reasons set forth below, this Court finds that substantial evidence supports the Commissioner’s decision. The Court therefore RECOMMENDS that Plaintiff’s Motion for Summary Judgment (Dkt. 12) be DENIED , that Defendant’s Motion for Summary Judgment (Dkt. 14) be GRANTED , and that, pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner of Social Security be AFFIRMED .
Plaintiff was 52 years old on the date she alleges she became disabled. ::FOOTNOTE::1 (Tr. 154.) Plaintiff graduated from high school and completed some college work. (Tr. 81.) She previously worked as a computer-aided drafter (CAD), a general laborer, and as a care giver. (81-85.) She alleges that she cannot work due to her depression, [*2] gender dysphoria and deafness. (Tr. 75-76.) Continue reading “French v. Commissioner of Social Security (USA)”
The U.S. Centers for Medicare and Medicaid Services opened a reconsideration of the National Coverage Determination on Surgical Treatment for Gender Identity Disorder. Surgical Treatment for Gender Identity Disorder (formerly referred to as transsexual surgery in 140.3) is currently noncovered under the Medicare Part A and Part B programs. The existing policy, which became effective in 1981, considers transsexual surgery experimental.