By Dr. Rachel S. Silverman
Update to 2023 article “Preliminary Injunction Granted in Transgender Athlete Case” in Sports Litigation Alert.
In 2023, Plaintiffs, Megan Roe and Jane Doe, filed a lawsuit seeking preliminary and permanent injunctive relief related to A.R.S. § 15-120.02, the Save Women’s Sports Act in Arizona. Plaintiffs claimed the law violated the Equal Protection Clause of the 14th Amendment, Title IX, Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. A.R.S. § 15-120.02, whichprohibits transgender girls from participating in an athletic team or sport designated as female, women, or girls. Plaintiffs reasoned they had not undergone male puberty, and thus, had no competitive or physiological advantage over their cisgender peers. Plaintiffs were granted a preliminary injunction and allowed to play girls’ sports at their respective schools.
On June 21, 2024, Defendants, Thomas C. Horne et al., filed a motion to dismiss. Defendants argued Plaintiffs failed to state ADA and Rehabilitation Act claims because gender dysphoria is (1) excluded from ADA coverage under 42 U.S.C. § 12211(b); (2) Plaintiffs do not assert that their gender identity disorder results from a physical impairment; and (3) Plaintiffs do not declare that a major life activity has been substantially limited.
To establish a discrimination claim under either the ADA or Rehabilitation Act, Plaintiffs must prove they have a disability; were excluded from participation in or denied benefits of the services, programs, or activities of a public entity; and the exclusion, denial, or discrimination was due to their disability. Defendants argue gender dysphoria is not a disability under ADA because in Section 12211(b) in the definition of a disability, the following are excluded: “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments or other sexual behavior disorders.” The term gender dysphoria is not explicitly mentioned, but Defendants argue Congress intended to include gender dysphoria in the list of excluded conditions. The court stated words should not be added or read into a law, and excluding gender dysphoria would rewrite a law Congress has not chosen to rewrite. The court substantiated “gender dysphoria” as distinct from “gender identity disorders.”
When the ADA was enacted in 1990, the term “gender dysphoria” was not a recognized diagnosis in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). The DSM defined “gender identity disorders” as when assigned sex and gender identity are not in agreement. In 2013, the term “gender identity disorders” was removed from the DSM, and “gender dysphoria” was added as a diagnosis. Defendants argued the term “gender dysphoria” replaced the term “gender identity disorder,” and thus, was not a new diagnosis.
The court clarified different symptoms characterize the two diagnoses. Gender dysphoria goes beyond identifying with a different gender, and the critical element is the significant distress experienced by those whose assigned sex and gender identities are not aligned. The DSM states the distress caused by gender dysphoria can result in anxiety, depression, suicidal thoughts, and suicide. It states when left untreated, gender dysphoria can result in severe psychological and physical harm. Also, in 2009, Congress amended the ADA’s definition of “disability” to be broader. The court concluded gender dysphoria did not fall under “gender identity disorders” as imagined at the time of ADA’s enactment.
A disability is defined as “a physical or mental impairment that substantially limits one or more major life activities” (42 U.S.C. § 12102). Defendants maintain Plaintiffs have not specified “which major life activity has been impaired” and that playing sports is not a major life activity. The court justified Plaintiffs reasonably alleged they have a disability that substantially limited one or more major life activities because the symptoms of gender dysphoria may considerably limit activities including, but not limited to, eating, sleeping, learning, reading, concentrating, thinking, communicating, and working. The DSM states the consequences of gender dysphoria include interference with daily activities. The court asserted the ADA and Rehabilitation Act prohibit covered entities from excluding or discriminating against qualified individuals with a disability from participating in a program, service, or activity. The court further explained that the issue is not whether “playing sports” is a major life activity, but rather whether “playing sports” is an activity from which the Plaintiffs were excluded based on their disability.
The court concluded Plaintiffs convincingly stated claims under the ADA and the Rehabilitation Act, and thus, the court denied the motion to dismiss.
References
Doe v. Horne, 2024 U.S. Dist. LEXIS 109586 *; 2024 WL 3091984
Dr. Rachel S. Silverman is an Assistant Professor and Program Coordinator for the Sport and Recreation Management Program in the Kinesiology and Sport Sciences Department at the University of Nebraska at Kearney. Her research agenda focuses on women in sports, including legal, sociological, and ethical aspects of sports management.
