The U.S. Department of Justice has entered the fray in a New Jersey transgender rights suit in hopes of averting a constitutional challenge over protections granted under the Americans with Disabilities Act.
In a statement of interest filed Monday, the Justice Department asked the judge in the case not to address the plaintiff's assertion in Doe v. Arrisi that a provision of the ADA denying protection to "transsexualism" and "gender identity disorders not resulting from physical impairments" is unconstitutional. The suit seeks to overturn a New Jersey law which prevents a transgender person to change the sex noted on the birth certificate unless the person had surgery to change the gender.
The DOJ was placed on notice because the suit argued that the ADA's exclusion of transgender people is unconstitutional. But it said the judge need not address the constitutionality of the exclusion because the plaintiff in the case asserts that her gender identity disorder is the result of a physical impairment. The agency cited the plaintiff's assertion in her complaint that her disorder "is a biological condition, likely due to brain neuroanatomy and the formation of that brain neuroanatomy in the womb." That would place her outside the ADA's exclusion for certain transgender persons, 42 U.S.C. 12211(b)(1), the DOJ said.
But, according to the plaintiff's lawyer, the federal government's participation is notable because it acknowledges that gender identity disorder is protected under the ADA.
Related issues are on the line in another case that is proceeding in the Eastern District of Pennsylvania, where a federal judge denied a motion to dismiss a transgender woman's wrongful termination suit against sporting goods retailer Cabela's on May 18. The judge in Blatt v. Cabela's ruled that transgender people with gender identity disorder may pursue civil rights claims under the ADA.
Advocates explain that gender identity disorder, which is feelings of distress over one's gender at birth, afflicts many transgender people but not all.
In the New Jersey case, 12 transgender rights groups submitted an amicus brief on July 7, urging the New Jersey court to be guided by the Cabela's decision. The Jane Doe plaintiff seeks the right to change the gender on her birth certificate without having gender reassignment surgery. A statute allows such changes only for persons who have undergone gender reassignment surgery, but the plaintiff argues that some transgender people don't undergo surgery for medical, financial or other reasons. In 2014 and again in 2015, Gov. Chris Christie vetoed bills that would have modified the statute to allow birth certificate changes by transgender people who did not have surgery.