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Aug. 3 — Discrimination charges based on transgender status have been filed under Title VII, but an EEOC district director said he is seeing “an emerging issue”—those claimants are starting to assert violations of the Americans with Disabilities Act, too.
“You can expect to see this issue play out under both statutes,” Reuben Daniels told participants Aug. 3 at the National Industry Liaison Group's annual conference in Charlotte, N.C. Daniels is district director of the Equal Employment Opportunity Commission's Charlotte District Office.
“Right now, the EEOC has not taken a position on this issue,” Daniels said.
However, the Justice Department has argued in federal courts that gender dysphoria is a disability under the ADA and not excluded by a statutory exemption for gender identity disorder claims not resulting from a physical impairment.
“The EEOC is not there yet, so we have not issued any decision or guidance on discrimination based on transgender status or gender identity under the ADA. But, as a best practice, we do accept those claims to preserve the rights of the charging party” regarding the timeliness of the charge, he said.
The agency doesn’t advise charging parties on discrimination based on gender identity and transgender status under the ADA, he said. The agency will focus on the portion of the charge related to Title VII of the 1964 Civil Rights Act.
Daniels generally sees the ADA allegations in discrimination charges in which private counsel have informed the charging party or the EEOC that they want to file under the ADA, as well as Title VII. “If that’s the case, then we will honor that,” he said.
Furthermore, “we are starting to see litigation in which plaintiffs are pleading the ADA coverage as part of their gender identity, transgender status or LGBT protection,” he said.
“There is a debate going on in the lesbian, bisexual, gay and transgender community as to whether gender identity or transgender status should be treated as an ADA-covered issue. You don’t want your identity to be tagged as being a disability. That is one of the arguments that I have heard,” Daniels said.
However, some have said that “this is an issue in which I have no control, and it’s no different than depression or any kind of medical condition that may be psychological or psychiatric in nature,” he added.
Some medical experts have said that “gender is not binary, but part of a continuum, and people can identify at various places on the scale,” he said. “Maybe the law is struggling to catch up with the medical community.”
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