Tooting My Own Horn!

On August 16, 2022, The U.S. Court of Appeals for the Fourth Circuit delivered a landmark ruling interpreting the Americans with Disabilities Act (ADA) as being transinclusive, on an appeal from a dismissal from the U.S. District Court for the Eastern District of Virginia in the following decision WILLIAMS v KINKAID, et al., 2022 WL 3364824 (4th Cir. August 16, 2022) I grant the 4th Circuit ruling on #transinclusion in the #ADA is from August 2022. For analysis published in THE HILL, See:

Americans with Disabilities Act protects transgender people, judge rules

BY Brooke Migdon - Aug. 16, 2022

Over 11 years ago, I wrote an article published in THE HILL where I predicted this outcome, based on the clear language of the statute as written

https://

Bringing order out of chaos – a modest proposal

BY JOANN PRINZIVALLI - 03/24/11 1:46 PM ET (THE HILL > CONGRESS BLOG > CIVIL RIGHTS)
espect/equality/3604307-americans-with-disabilities-act-protects-transgender-people-judge-rules/

For those who think actually reading my article is a TL:DR experience, here is the relevant quote:

civil-rights/86500-bringing-order-out-of-chaos

odest-proposal/

"While the #AmericansWithDisabilitiesAct appears to exclude transgender people, there is an exception to the statutory exclusion if the gender issue is biologically based – and the modern medical understanding of brain development indicates that this is indeed the case."

The statutory provision in question, 42 USC §12211(b)(1) involves a specific exclusion from the definition of disability in the statute, that, when it was written, also has an exception to the exclusion:

“. . . transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders”

At the time the ADA was being drafted, Senator Jesse Helms wanted to make sure that "immoral disorders" were excluded, and he, and Senator William Armstrong, both Republicans, urged their colleagues to vote against the ADA because it did not contain such an exclusion, as drafted by Senator Ted Kennedy and Senator Tom Harkin, and in order to obtain passage of the bill, the "moral" exclusions were added - but as underlined in the above quote from the statute, the exclusion for gender identity disorders had an added caveat - they were excluded ONLY if "not resulting from physical impairments." In 1965, a blue-ribbon medical commission convened by the New Yok City Department of Health, concluded that medical and surgical treatment for transsexual patients was "merely palliative: - only to make the patient feel better. At that time, medical and scientific understanding of the brain and its structures was not well known.

In 1989, when Jesse Helms insisted on excluding "immoral disorders" fromn the ADA, even he had no objection to carving out from the exclusion, those gender identity disorders resulting from physical impairments. At the time, science knew that there were genetic and developmental conditions that result in people being intersex, with several physiological conditions being well documented. But it was not until 1999 that studies identified physiological bases for the existence of transgender people - in particular, the neuron density of the central section of the Basal Stria Terminalis in the brain's hypothalamus (BSTc), and within a decade, other scientists had isolated a number of genetic traits that create genetic predispositions for such physiological developments in the brain. These advances in science made it clear that transgender people could fall into the exception to the exclusion, since the basis is not a matter of "morality" but is based in physiology. In my own 2009 lawsuit against the New York City Department of Health, relating to the New York City regulations relating to birth certificate corrections for transgender people, I was able to prevail against the City's motion to dismiss based on the scientific advances, and the City's regulations being "arbitrary and capricious," in order to overcome three very bad cases from the 1970's that had rejected the petitioner's challenges to the regulations as created after the 1965 blue ribbon commission report had been made.(Prinzivalli v. Farley, Supreme Court, New York County, No. 114372/2009 (Decision of Judge Joan Madden, 6/28/2010))

With reference to the ADA, while the Fourth Circuit ruling appears to be the first federal appellate decision, there have been previous favorable rulings following the interpretation that was suggested in my article, as had been advanced by the Obama Administration Justice Department, including: BLATT v. CABELA'S RETAIL, No. 5:14-cv-04822, 2017 WL 2178123 (E.D. Pa. May. 18, 2017) INC.

which was cited in Williams, together with a string of other later district court cases, Venson v. Gregson, No. 3:18-cv-2185, 2021 WL 673371 (S.D. Ill. Feb. 22, 2021) ; Iglesias v. True, 403 F. Supp. 3d 680 (S.D. Ill. 2019) ; Doe v. Mass. Dep't of Corr., 2018 WL 2994403 (D. Mass. 2018); Edmo v. Idaho Dep't of Corr., No. 1:17-cv-00151, 2018 WL 2745898 (D. Idaho June 7, 2018). I am certainly gratified that my 2011 article at least predicted the way the courts would interpret the ADA. Since the article does not seem to have been cited as a source, I can't conclude that my article had any direct influence on any of the federal court decisions - but those decisions were correctly made, and I am grateful for that.