In a federal district court in Pennsylvania there is an ongoing challenge to the transgender exclusion in the Americans with Disabilities Act. Passed in 1990 the ADA prohibits discrimination on the basis of a medical or mental condition but includes the Helms Amendment, along with a portion of the original act included in hopes of enticing support from the extreme right, which some call the "moral code": the act excludes from protection "transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, and other sexual behavior disorders

Kate Lynn Blatt was hired as a seasonal stocker at Cabela’s Retail in the fall of 2006, according to allegations in the complaint. Before starting her job, she attended a two-day orientation dressed in female attire, and used the women’s employee restroom without issue. Once she started working, however, Blatt was prohibited from using the women’s restroom and was forced to wear a name tag depicting her name as “James,” even after she presented the director of human resources with documentation of her legal name change.

Blatt claims her colleagues called her “ladyboy,” “freak,” and “sinner.” Cabela’s made Blatt use the single-sex “family” restroom at the front of the store, rather than the female employee restroom closer to her work area, according to the complaint. Blatt claims she endured harassment from management and coworkers, and was abruptly terminated in March 2007.

Blatt has sued, claiming that Cabela's discriminated against her on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 and that Cabela's refused to reasonably accommodate Blatt's formal diagnosis of gender dysphoria by denying her use of the appropriate restroom and the ability to wear the appropriate name tag.

Blatt’s case presents a critical issue … on the question of the constitutionality of the exclusion of transgender people from the ADA.

--Jennifer Levi, Gay & Lesbian Defenders (GLAD)

In July the Justice Department submitted a four-page statement of interest, which upset many legal advocates for the transgender community:

The United States respectfully requests that the Court defer ruling upon Plaintiff’s constitutional challenge to the GID Exclusion until after the Title VII claims are resolved, as disposition of Plaintiff’s Title VII claims could resolve this case without the need to reach the constitutionality of the GID Exclusion,” the filing says. “Should the Court later determine that the constitutional issue cannot be avoided, the United States respectfully reserves the right to intervene or file a supplemental statement of interest at that time.

While we acknowledge these bright spots (support for a Title VII ruling and the ability to revisit the ADA), the problem created by the ADA exclusion remains. Congress excluded transgender people from the protections of the ADA because of the stigma associated with gender dysphoria. As long as the transgender exclusion remains within the law, the ADA fails in its promise to create a level playing field in employment for all people capable of doing the job.

--Levi

In a friend-of-the-court brief, it was argued that by maintaining the trans exclusion the ADA perpetrates exactly the kind of discrimination it seeks to dismantle.

In a seven-page filing Nov. 16, the DOJ said gender dysphoria also would be covered by the ADA, since it appears to have a physical cause, according to recent medical literature.

"Numerous medical studies conducted in the past six years point in the direction of hormonal and genetic causes for the in-utero development of gender dysphoria."

While no clear scientific consensus appears to exist regarding the specific origins of gender dysphoria (for example, whether it can be traced to neurological, genetic or hormonal sources), the current research increasingly indicates that gender dysphoria has physiological or biological roots.

--DOJ filing

While we do believe gender dysphoria has a physical component, the DOJ did not address the constitutional question of GID’s exclusion.. We believe GID’s exclusion — at its core — is unconstitutional. And we plan to develop this argument further for the court.

--Neelima Vangurt, attorney for Blatt

Cabela’s claims Blatt was properly dismissed after she threatened a coworker’s child — an allegation Blatt vehemently denies.