Are Transgender Employees Now Covered Under the ADA Due to Evolving Science?

The Americans with Disabilities Act specifically carves out Gender Identity Dysphoria (“GID” or “GD”) as not covered by the Act, but recent developments in a federal case in Pennsylvania suggest that employers may need to consider the ADA when dealing with transgender employees in the not-so-far future. In U.S. District Court in Pennsylvania, a lawsuit filed last spring that challenges the ADA’s GD exclusion on equal protection grounds drew a position statement from the U.S. Department of Justice. The DOJ advanced the position that evolving science indicates that GD stems from a physical impairment and is thus covered under the ADA in spite of the specific exclusion. Jen Cornell, Nilan Johnson Lewis employment & labor attorney, says that if the Pennsylvania court or other agencies such as the Equal Employment Opportunity Commission adopt the DOJ’s position and apply the requirements of the ADA to transgender employees, it could impact businesses’ requirements for accommodating transgender individuals regardless of where the transgender employee is in the process of transitioning. To stay on top of the issue and put itself in a stronger position of eventual compliance, she recommends that organizations evaluate their accommodations policies to ensure that they can be applied to transgender employees.  Additionally, any gender-specific policies in the workplace, such as dress-codes or bathroom policies, may need to be revised as a result of the government’s position. Contact Jen Cornell at jcornell@nilanjohnson.com or (612) 305-7717.

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