DISABILITY LAW and GENDER IDENTITY DISCRIMINATION

Abstract

Transgender advocates have recently turned to disability law to obtain discrimination protections lacking elsewhere. Championing the American Psychological Association's decision to substitute "gender dysphoria" for "gender identity disorder,"1 they argue that using disability law to combat gender identity discrimination will not pathologize transgender people. Due to this claim, leading advocates conclude that "the overwhelming consensus among transgender rights advocates is strongly in favor of Americans with Disabilities Act coverage of gender dysphoria."2 While this Article sympathizes with the pragmatic need to address gender identity discrimination, it questions the disability law approach. Despite the transformative potential of the social model of disability, current United States disability discrimination law requires plaintiffs to cooperate with the medicalization of gender dysphoria. It also requires them to characterize gender dysphoria as inherently negative. Disability law's expressly anti-trans provisions further stigmatize transgender plaintiffs by conditioning discrimination coverage on a showing that gender dysphoria has a physical etiology. This exercise is intrusive, potentially costly, and reflects an assimilationist bias eager to blame people for their gender nonconformance. Even disability law's innovative "regarded as disabled" coverage falls short of advocates' expectations.3 Its exclusive focus on discriminators' beliefs related to medical impairments obscures discriminators' far more relevant beliefs about gender variation and nonconformance.