Is the ADA Tainted By Unconstitutional Animus?

Is the exclusion of "gender identity disorders" from the ADA based on a "bare desire to harm"?

The Americans with Disabilities Act was enacted in 1990. This landmark statute provided federal protection for a wide range of disabilities. But the statute created an express exception for "gender identity disorders not resulting from physical impairments." In Williams v. Kincaid, the Fourth Circuit found that "gender dysphoria" was not equivalent to what the ADA referred to as a "gender identity disorder." Thus, the panel ruled, gender dysphoria was a disability protected by the ABA. The panel favored this reading "to avoid a serious constitutional question." Specifically, the panel concluded that excluding protections for "gender dysphoria would discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment." And, under circuit precedent (Grimm v. Gloucester County School Board), the classification did not survive intermediate scrutiny.

But the panel went further. It found that the enactment of this statute was tainted "evidence of discriminatory animus toward transgender people." The panel then quoted legislative history from members of Congress that analogized "gender identity disorders" with immoral and criminal behavior. Many of these statements echoed the claim in the Defense of Marriage Act that the law evinced a "moral disapproval" of same-sex marriage. The panel cited Romer, a classic Kennedy opinion that relied on the "discriminatory animus" standard.

In light of the "basic promise of equality … that animates the ADA," we see no legitimate reason why Congress would intend to exclude from the ADA's protections transgender people who suffer from gender dysphoria. Nat'l Fed. of the Blind, 813 F.3d at 510. The only reason we can glean from the text and legislative record is "a bare … desire to harm a politically unpopular group[, which] cannot constitute a legitimate governmental interest." Romer.

Since Justice Kennedy's retirement, I have wondered about the status of "animus"- and "bare desire to harm"- jurisprudence. I don't think Romer, Lawrence, or Obergefell will be overruled. (Sorry, Justice Thomas). But I am skeptical the Court finds similar animus in a future case.

Kincaid was appealed to the Supreme Court. On the mop-up list, the Supreme Court denied certiorari. Justice Alito, joined by Justice Thomas, dissented from the denial of certiorari. And he flagged the Equal Protection issue:

The panel majority sought to bolster its interpretation of the ADA by invoking the doctrine of constitutional avoidance. The majority argued that even if the ADA's text did not require this interpretation, it would nevertheless be necessary in order "to avoid a serious constitutional question" under the Equal Protection Clause. Citing Circuit precedent, the majority found that "the ADA's exclusion of 'gender identity disorders' " from the definition of disability was "evidence of . . . discriminatory animus" by Congress, and to support this conclusion, the majority pointed to "moral judgment[s]" expressed by legislators who backed the exclusion for "gender identity disorders."

Justice Alito rejected this Kennedy-esque approach to the Equal Protection Clause:

Finally, the Fourth Circuit's animus analysis relies too heavily on statements made by a few Members of Congress and does not sufficiently take into account the many considerations that Congress may have had in mind in adopting a piece of major legislation like the ADA. A legislative body "need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns." Williams-Yulee v. Florida Bar (2015). Congress may also have thought that coverage of gender-identity-related conditions would raise special free speech and free exercise concerns. It seems more than uncharitable to say, as the Fourth Circuit did, that "[t]he only reason we can glean" for excluding gender identity disorders is "'a bare . . . desire to harm a politically unpopular group.'" 45 F. 4th, at 773.

Were this the test, then Windsor would have upheld the Defense of Marriage Act. But we have a different Court now then we did a decade ago.

Cert was denied in Kincaid. And on quick glance, there appear to be vehicle problems. But the Supreme Court should clarify this issue sooner rather than later. It will be very difficult for a circuit split like this to sustain itself. Eventually, enough circuits will agree with the Fourth Circuit, thus making this issue harder to revisit.