Definition of Disability
A federal district court in Colorado recently held that gender dysphoria falls within the realm of conditions specifically excluded from protection against disability-based discrimination under the Rehabilitation Act. Michaels v. Akal Security and U.S. Department of Justice, 2010 WL 2573988 (D. Colo. 6-24-10).
Sue Ann Michaels was born male but began hormone treatments in or before February 2007 as part of the process of transitioning to the female gender. Ms. Michaels worked as a court security officer for Akal Securities, a provider of court security services for a federal courthouse in Denver, Colorado, under contract with the U.S. Marshal Service. In September 2007, during her annual medical examination, Ms. Michaels disclosed to Akal that she had been diagnosed with gender dysphoria. Akal later ordered Ms. Michaels to undergo another medical examination ostensibly to determine whether she was still able to meet the physical requirements of her position as a court security officer and allegedly ordered her to produce additional medical documentation on three or more occasions.
In October 2007, Ms. Michaels began presenting herself as female at work and using female restrooms, which resulted in complaints from staff and coworkers. Ms. Michaels responded by sending a letter to her supervisor in which she claimed that her work environment had become tense, and offering to take part in a question-and-answer session about her transgender status. In November 2007, Akal informed Ms. Michaels that it had initiated an investigation into her continued use of female restrooms. In January 2008, Akal placed Ms. Michaels on involuntary leave without pay while its continued investigation was pending.
Ms. Michaels timely filed complaints alleging violations of Title VII based on gender and retaliation, a claim of harassment based on perceived disability in violation of the Rehabilitation Act, and Fifth Amendment Due Process and Equal Protection claims. The Attorney General sought dismissal of several of Ms. Michaels’ claims.
The district court held that based on Tenth Circuit precedent, Ms. Michaels could not sustain a claim of gender discrimination based solely on her status as a transsexual. However, the court did find that Ms. Michaels’ claims could be susceptible to treatment as discrimination for failure to conform to gender stereotypes – Ms. Michaels was a biological male whose appearance was out-of-line with stereotypical gender norms. The district court therefore refused to dismiss Ms. Michaels’ claims alleging violations of Title VII based on sex.
As for Ms. Michael’s retaliation claims, the district court found that she had not put her employer on notice of her perception that she was being subject to discrimination. Rather, Ms. Michaels had simply described her work environment as tense, without establishing any causal connection between that tension and her protected activity. The court therefore dismissed Ms. Michael’s retaliation claims.
Because Title VII preempts any constitutional claims brought by federal employees which might also be brought under Title VII, the court dismissed Ms. Michaels’ Fifth Amendment claims as “clearly based on her position as a federal employee.” Finally, the court also dismissed Ms. Michael’s claim of disability-based discrimination under the Rehabilitation Act. The court reasoned that the Rehabilitation Act expressly excludes from the definition of disability, “transvestism, transsexualism … [and] gender identity disorders not resulting from physical impairments.” The court held that gender dysphoria falls within the express exclusions under the Rehabilitation Act.