RUTHFULLY YOURS

Yesterday, a male prisoner serving a three-to-four-year sentence for drug offenses sued the Massachusetts Correctional Institution, demanding, among other things, that the state transfer him to a female correctional facility because he suffers from gender dysphoria.

In his lawsuit, filed by GLBTQ Legal Advocates & Defenders under the pseudonym Jane Doe, Doe alleged violations of his federal and state constitutional rights to equal protection and due process, as well as his rights under the Americans with Disabilities Act. All of Doe’s legal theories are dubious, but none so much as his disability claim under the ADA.

Passed in 1990, the ADA prohibits discrimination on the basis of a disability, and also requires employers and public entities — including prisons — to provide reasonable accommodations to disabled individuals. But in passing the ADA, Congress explicitly provided that “the term ‘disability’ shall not include (1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.” And Doe’s complaint specifically says that his “doctor ultimately diagnosed Jane Doe with Gender Identity Disorder, or transsexualism.”

Given the clear statutory language, a court should quickly toss out Doe’s ADA claim. But that is not what happened the last time a man suffering from gender dysphoria brought a disability-discrimination claim under the ADA. Rather, when Kate Lynn Blatt sued his employer in 2014 under the ADA, the case lingered until May 2017, when federal district-court judge Joseph F. Leeson Jr. refused to dismiss the lawsuit, and instead held:

It is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have — such as Blatt’s gender dysphoria, which substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning.

The court’s reasoning is illogical: As Ed Whelan asked at the time, “We’re supposed to believe that it is ‘fairly possible’ to read gender identity disorders to mean only gender identity (‘identifying with a different gender’) and not to extend to disorders?” Because the parties in the Blatt case settled shortly after Judge Leeson refused to toss out the plaintiff’s case, a higher court will not have the opportunity to correct the district court’s flawed analysis.

Judge Leeson, however, was not the only one misconstruing the ADA in the Blatt case. Shockingly — or maybe not — in a “Statement of Interest” filed with the district court, the Obama administration’s Department of Justice officially professed that the ADA does not exclude those suffering from gender dysphoria. The DOJ reasoned that because the exclusion applies only to those gender-identity disorders “not resulting from physical impairments,” gender dysphoria doesn’t qualify, given that recent medical studies point to in utero “hormonal and genetic causes” for the condition.

While it is unclear whether the Department of Justice under the Trump administration will continue to advance this position, Doe’s attorneys will likely push the same argument in pursing his ADA claims. But this reasoning is flawed as a matter of statutory interpretation, and the court should reject it: A physical cause is not the same thing as a physical “impairment.” Doe does not allege that his gender dysphoria is caused by a true physical impairment, such as Turner syndrome.

Doe’s attorneys will likely advance one final theory — one argued by the Transgender Law Center and other LGBT groups in an amicus brief they filed in the Blatt case. There they argued the exclusion for “gender identity disorder” under the ADA does not apply to “gender dysphoria.” However, these are two names for essentially the same condition; the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders changed the preferred term in 2013. A mere renaming of a condition is unlikely to sway the legal analysis.

While Doe’s ADA claims should fail, he actually has a solid basis to sue under a different legal theory — that the prison is violating his Eighth Amendment right to be free from cruel and unusual punishment. Under currently governing case law, prison officials violate the Eighth Amendment’s prohibition of “cruel and unusual” “when they exhibit ‘deliberate indifference’ to a detainee’s serious medical needs.” A quick read of Doe’s complaint shows that he suffers greatly from his gender dysphoria. And Doe alleges that the male correctional officers routinely grope his breasts and gratuitously harass and demean him by saying: “Do you have a penis? Then you’re still a man.” Taunts and bullying do not constitute “cruel and unusual” punishment by themselves, but intentional psychological torture would, especially if guards purposefully target a prisoner who suffers from a severe and debilitating mental disorder.

But Doe’s attorneys do not present this stronger claim, and one must wonder why. Are they putting their cause before their client? After all, by the time Doe’s case winds through the court system, he will be released from prison. Doe would be better served if his attorneys dismissed the recently filed complaint and refiled one focused solely on what, from the allegations in the complaint, appears to be a cruel indifference to Doe’s serious condition. While this theory won’t get LTBT activists what they want — to force prisons and employers to believe a man is a woman — it will reduce Doe’s needless suffering.