Queer Channel Media: Trans-Washing the ADA

Kathi Wolfe, writing for Queer Channel Media:

Fighting for marriage equality is one of many things that the LGBT and disability communities historically (and today) have in common.

This month is Disability Pride Month, observed to celebrate the history of people with disabilities and passage 21 years ago of the Americans with Disabilities Act (ADA).

The ADA prohibits disability-based discrimination.

Unless, of course, the ADA brands you as having an impairment but explicitly tells America that you can be discriminated against anyway.

Are LGBs and Ts together in that boat?

Of course not.

Sec. 12211. Definitions

(a) Homosexuality and bisexuality

For purposes of the definition of “disability” in section 12102(2) of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter.

(b) Certain conditions

Under this chapter, the term “disability” shall not include

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders….

Right up front, gays and lesbians are told that they’re not covered – but specifically because homosexuality is not an impairment.

Transsexuals, cross-dressers and any non-intersex person who might be T-something also are told that they’re not covered.  However, (1) there is the implied declaration that everything connected to such folx is an “impairment” generally, and (2) there’s also the shot at the end which brands all of the above as a behavioral disorder.

We queer crips are of all races, classes, genders, orientations and occupations. Our disabilities include HIV, diabetes, cancer and depression (all covered under the ADA).

If you’re LGBT and a recovering alcoholic, you, too are protected by the ADA.

But if you’re out(ed) about being trans-anything?

 Then you’re fucked.


And who was cool with that setup back when the ADA bill was being crafted?

Following the amendments to the ADA bill in 1989, which yielded those exclusions, Steve Smith, a lobbyist for HRC (then the Human Rights Campaign Fund (HRCF)), actually offered praise for them: “By and large were quite pleased with it,” Smith remarked. Cliff O’Neill, “Senate Passes Disabilities Anti-Discrimination Bill – Measure Includes Protection for HIV Infected,” Bay Windows, Sept. 14-20, 1989 at 17. “Homosexuality and transvestism and bisexuality are not disabilities and we are very happy to hear that Sen. [Jesse] Helms has taken this position and we agree with him 100 percent.” Id. Peri Jude Radecic was a bit more realistic, agreeing with Smith about homosexuality and bisexuality, but noting, “as far as the other categories are concerned, I think that anytime that people are removed from protections, I don’t necessarily think that’s a good situation. I’m not happy anyone is excluded from the bill.” Id. Smith and Bay Windows neglected to point out not only that one of those “other categories” Radecic alluded to was transsexualism – something about which there is no consensus, even among transsexuals, as to whether it should be classified as a disability – and that some of the few LGBT successes under the pre-ADA, Nixon-era Rehabilitation Act were cases brought by trans people, one who identified as a transsexual and another who was denoted as a “homosexual and transvestite.” See Doe v. U.S. Postal Serv., No. 84-3296, 1985 U.S. Dist. LEXIS 18959 (D.D.C. June 12, 1985) (allowing transsexual woman to bring constitutional claims against post office for rescinding an offer of employment after learning that plaintiff was a transsexual planning a gender reassignment surgery); Blackwell v. U.S. Dep’t of the Treasury, 639 F. Supp. 289 (D.D.C. 1986) (alleging that Treasury Department discriminated against plaintiff when it failed to rehire plaintiff because he was transvestite). It is difficult not to wonder whether someone who had, at the time of the pertinent facts of the case, apparently been living full-time as a female since the early 1970s was, in fact, neither a homosexual nor a transvestite but a pre-operative or non-operative transsexual. Moreover, despite initial success, Blackwell’s claim ultimately failed. Blackwell v. U.S. Dep’t of the Treasury, 830 F.2d 1183 (D.C. Cir. 1987).

That is the text to a footnote in a law review article of mine – as transcribed over at Pam’s House Blah, where voices who claim to speak for us (but who actually don’t) predictably took HRC’s side.

[Y]our evidence does not show that HRC “praised the trans exclusions.” Smith apparently praised the entire bill, and not the exclusions. As noted, homosexuality and bisexuality were also excluded….

Except, of course, that (1) if you are praising the whole bill with full knowledge of exclusions therein then you, whether you like it or not, are indeed praising the exclusions (you know, like praise for 2007’s ENDA 3685 is, whether you like it or not, is praise for its trans-exclusion), (2) the words “very happy” connote praise and that praise included at least the transvestism exclusion, and (3) as I noted above, the social mechanics of the exclusion of the trans-stuff are infinitely more harsh than the exclusion of homosexuality.

Years of prejudice won’t be easily swept away. Yet, let’s make a beginning during this season of Pride. I invite you to get know us queer crips.

I would invite Queer Channel Media to get to know real trans legal history, but….

One Response to Queer Channel Media: Trans-Washing the ADA

  1. Jane says:

    It is not neccesary to fight for fair treatment as trans because your disabled. You are not disabled becuase of thinking you anouther gender trapped in the wrong body. there are simple surgery available for those who feel trapped in the body of the incorrect sex. Upon completition of the surgery for those born in California they become men or women and get a new birthrecord.

    I changed my gender because it was wrong, I did not transition to be on disability. It pains me to no end when transvestites try to join the fold, that is just plain wrong!

    That is what happens in California, and the typical acts of discrimination change for an indivdual fully corrected to a new gender in California. It becomes sex discrimination and nothing else. Lots and lots of variation on the sex discrimination acts post operative men an women face but it all leads to denial of there corrected to sex and so, is sex discrimination.

    A person in transition from male to female or vice versa is not a transvestitie and transitional persons should stay well clear of transvestite agenda as it is not the agenda of men wishing to be women or of women wishing to be guys.

    If you want to transition to anouther gender do so completly or not at all.

    Frankly my advise is if your state is not going to support you one hundred percent, than do not start transition. It will be more damaging for you to find that your state wants to keep a in a gender limbo status.

    just my opinion, but lets kick out the transvestites and crossdresser from the gender correcting crowd.

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