San Diego Law Review


Julia Reilly

Library of Congress Authority File


Document Type



The ADA prohibits discrimination against individuals based on actual or perceived disabilities. However, the ADA excluded certain conditions from the Act, such as “transvestism,” “transsexualism,” and “gender identity disorders (GID) not resulting from physical impairments.” This exclusion is commonly referred to as the “GID exclusion.” Since the passage of the ADA, the Diagnostic and Statistical Manual of Mental Disorders has reclassified gender identity disorder as gender dysphoria (GD), which is a “marked difference between the individual’s expressed/‌experienced gender and the gender others would assign him or her . . . .” Historically, the GID exclusion was unchallenged and transgender litigants who did attempt to invoke protection for gender dysphoria under the ADA were unsuccessful. However, in 2017, a transgender woman challenged the GID exclusion and the district court held that individuals with gender dysphoria may receive protection under the ADA. Since then, several other transgender litigants have been able to survive motions to dismiss. Nonetheless, despite some transgender litigants’ recent successes, the Supreme Court has yet to interpret the GID exclusion. However, the Supreme Court’s close reading and textualist approach in Bostock to interpret a federal discrimination statute will likely have implications on the interpretation of the ADA’s GID exclusion, which, in turn, should expand the ADA’s protection of individuals with gender dysphoria.

Part II of this Comment discusses disability and transgender discrimination, as well as the diagnosis of gender dysphoria. It reviews the Supreme Court’s decision in Bostock and sets forth the textualist approach of the majority opinion. Part III introduces the causation standard typically used in claims brought under the ADA and analyzes the impact that the Bostock opinion should have on the ADA causation standard moving forward, regardless of the protected identity. Part IV analyzes Bostock’s effect on transgender litigants under the Equal Protection Clause. Because the Court in Bostock linked discrimination of gender identity to sex discrimination, the GID exclusion discriminates based on sex and should be subject to intermediate scrutiny. Part V explores the implications of the strict textualist approach taken in Bostock on arguments by plaintiffs with gender dysphoria. Based on the plain text of the statute, gender dysphoria falls outside of the GID exclusion. Further, plaintiffs will be able to more effectively rebut defenses about the interpretation of the exclusion based on the legislative intent behind the ADA, as well the subsequent legislative history. Lastly, Part VI applies the textualist approach in Bostock to arguments made by plaintiffs that gender dysphoria results from a physical impairment, allowing gender dysphoria to fall under the protection of the ADA.



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