The federal district court in the Eastern District of Pennsylvania heard argument yesterday in Blatt v. Cabela’s Retail, a case that challenges the transgender exclusion written into the Americans with Disabilities Act (ADA).The hearing marked the first opportunity for the constitutional arguments for striking the exclusion to be fully laid out in court.

Sidney Gold, Neelima Vanguri and Brian Farrell of Sidney Gold Associate LP; Kevin Barry, Professor of Law at Quinnipiac University; Jennifer Levi, GLAD Transgender Rights Project Director; and Christine Duffy, Senior Staff Attorney at Pro Bono Partnership and author of Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide

U.S. District Judge Joseph Leeson presided over argument for close to an hour on the retail chain’s motion to dismiss claims brought by transgender former employee Kate Lynn Blatt under both Title VII of the Civil Rights Act, on the grounds that Cabela’s discriminated against her based on her sex; and the ADA, on the grounds that Cabela’s refused to reasonably accommodate Ms. Blatt when the store denied her use of an appropriate restroom and the ability to wear a nametag with her correct name.

“Blatt’s case presents a critical issue of first impression on the question of the constitutionality of the exclusion of transgender people from the ADA,” said Jennifer Levi, Transgender Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD), who is providing ongoing consultation in the case. “I’m gratified that the judge gave thoughtful attention to the arguments for striking the exclusion, and hopeful that we’ll see the right outcome.”

Law Professor at Quinnipiac University and co-counsel for amici, Kevin Barry, spoke on behalf of several advocacy organizations, including GLAD, who argue the discriminatory exclusion violates constitutionally protected equality guarantees, and that by maintaining it the ADA perpetrates the very thing it seeks to dismantle: “the prejudiced attitudes and ignorance of others” and the ‘inferior status’ that people with disabilities – or those “regarded-as” by others as having a disability – occupy in society.”

The United States has also weighed in on the exclusion for the first time in the case, urging the court in a statement filed November 16 not to interpret the ADA to exclude transgender people.

Attorney Brian Farrell argued on behalf of Plaintiff Blatt who is also represented by Sidney L. Gold and Neelima Vanguri of Sidney L. Gold & Associates.

Read more about the case

New York, NY —  Today, over 100 national and local LGBTQ, immigrant, and civil rights organizations urged President Obama to stop Immigration and Customs Enforcement (ICE) from considering the Adelanto Detention Facility as a center to detain transgender immigrants.

The Adelanto Detention Facility in Southern California is geographically remote and poorly suited for transgender immigrants. The facility is in the Mojave Desert of Southern California, which is a four-hour round trip from Los Angeles. Placing transgender immigrants in the facility would effectively prevent any independent oversight by advocates and would severely limit transgender immigrants’ access to attorneys.

On August 13, 2014, LGBTQ advocates toured the Adelanto Detention Facility and spoke to individuals detained there. “We met a woman from Guatemala who had been placed in the men’s housing unit. The government did not even seem to know she was there,” said Aaron C. Morris, Legal Director of Immigration Equality.

Like pregnant women and minor children, LGBTQ individuals are some of the most vulnerable populations in detention. ICE should not place such at-risk groups in isolated facilities. The risk that they will be mistreated is too great. If the government cannot detain LGBTQ immigrants safely, it should not detain them at all. Instead, it should utilize alternative to detention programs, which are a more humane, inexpensive, and effective solution.

“Stop the abuse and criminalization of our communities and our bodies! #Not1More trans detention and killing! #StopTransMurders,” stated Edna Monroy, Southern California organizer at the California Immigrant Youth Justice Alliance.

“ICE must take responsibility for the safety, well-being, and fundamental due process rights of the people caught up in its national detention system. Transferring transgender women to Adelanto would make a mockery of this responsibility,” said Kathy Doan, Executive Director of the Capital Area Immigrants Rights’ (CAIR) Coalition.

“No one should fear for their life or personal safety in our corrections system,” said Ellie Perez, member of the Equality Arizona Board of Directors. “LGBTQ people in detention are disproportionately at risk of violence and mistreatment. Equality Arizona is proud to stand by a wide range of diverse organizations from all over our country calling on President Obama to ensure ICE cannot place transgender women in isolated facilities where they are at great risk.”

“Transferring transgender women to the Adelanto Detention Facility, where countless violations and failures to protect vulnerable populations have been documented and reported, is not only dangerous but inhumane. Rather than finding safety in the US, Transgender people continue to be misgendered during detention placements, denied transition-related care, and humiliated for being trans. Detention is not safe for LGBTQ Immigrants,” stated Myra Llerenas, Southern New Mexico Field Organizer for Equality New Mexico.

“Act justly, love mercy, walk humbly. We ask those things of our government,” stated Frances Browne, chair of the Immigrant Justice Network of Grant and Luna Counties, New Mexico.

“It’s time for the federal government to update its detention practices in terms of practicality, safety and assuring basic human dignity. Respect for human rights is a given, we don’t need a Congressional vote to do what’s humane and right for those in the immigration detention system especially in regard to Trans individuals whom likely qualify for asylum,” stated Ari Gutierrez, co-founder and Advisory Board Chair of the Latino Equality Alliance, an LGBT advocacy group based in Los Angeles.

“GEO Group, the infamous for-profit prison company that runs Adelanto, has a long history of abusing transgender women, asylum seekers, and people with disabilities. For example, Barbra Perez is a trans woman detained by GEO who was tortured in solitary confinement and denied necessary medical care while ICE tried to use the mistreatment to coerce her to accept deportation rather than fight her immigration case. Meanwhile, at Adelanto, Gerardo Corrales developed a life-threatening infection because GEO forced him to reuse dirty catheters. The President should shut down Adelanto instead of detaining trans women there,” said Olga Tomchin, Deportation Defense Coordinator and Staff Attorney of the National Day Laborer Organizing Network.

“Transgender women who have fled persecution and have come to the US to seek a safe haven should not be retraumatized by being imprisoned in inhumane conditions,” said Azadeh Shahshahani, President of the National Lawyers Guild. “Rather, they should have the right to seek asylum while being afforded respect for their human dignity.”

“Everyone, regardless of who they are or the person they love, deserves a fighting chance to provide for themselves and their families. Unfortunately, undocumented immigrants are still denied access to the promise of America. Far worse is the treatment of undocumented immigrant pregnant women, children, persons living with HIV, and LGBTQ people in detention centers. At these profit-driven detention facilities, LGBTQ people are fifteen times more likely than others to experience physical assault and rape. It is crystal clear that the most vulnerable cannot be kept safe at the Adelanto detention center and similar facilities. We urge the Administration to halt the transfer of people to the Adelanto Detention Facility and instead release all undocumented LGBTQ immigrants once and for all,” said Rea Carey, National LGBTQ Task Force Executive Director.

“It is imperative that we end the abusive treatment and blatant disregard for the safety of transgender women in detention centers, women who are often refugees fleeing violence and the threat of death in their home countries. Due to its remote location, just sending trans women to the Adelanto facility constitutes abuse because it sets barriers to legal representation and all but removes support of family and friends,” said Nell Gaither, president of Trans Pride Initiative. “Additionally, the record of the for-profit GEO group — and ICE in general — for ensuring the safety of trans women is abysmal. Please stop these abuses. Please end the policy of detaining vulnerable persons in such dehumanizing facilities and conditions under such proven incompetent management.”

Read the full letter here.

Yesterday in a Statement of Interest filed in the case Blatt v. Cabela’s Retail, the Department of Justice (DOJ) declined to weigh in on the constitutionality of an explicit transgender exclusion written into the Americans with Disabilities Act (ADA). Today is the 25^yèm anniversary of the passage of the ADA.

When the landmark law passed in 1990, it explicitly excluded from its protections people with Gender Identity Disorder (GID).

Jennifer Levi, director of the Transgender Rights Project at Gay & Lesbian Advocates & Defenders said, “It is surprising and disappointing that DOJ avoided the important question around the constitutionality of the transgender exclusion within the ADA.  Given the rank animus behind it, the exclusion serves to marginalize and stigmatize a minority group that the DOJ has recognized needs and deserves legal protections.”

Kate Lynn Blatt, a transgender employee of Cabela’s brought a discrimination claim against the store under both Title VII of the Civil Rights Act, on the grounds that Cabela’s discriminated against her based on her sex; and the ADA, on the grounds that Cabela’s refused to reasonably accommodate Ms. Blatt when the store denied her use of an appropriate restroom and the ability to wear a nametag with her correct name.

The Statement of Interest read in part: “The United States respectfully requests that the Court defer ruling upon Plaintiff’s constitutional challenge to the GID Exclusion until after the Title VII claims are resolved, as disposition of Plaintiff’s Title VII claims could resolve this case without the need to reach the constitutionality of the GID Exclusion. Should the Court later determine that the constitutional issue cannot be avoided, the United States respectfully reserves the right to intervene or file a supplemental statement of interest at that time.”

Levi said,  “There are two silver linings here: DOJ’s continued clear statement that transgender people are protected by Title VII; and DOJ specifically reserving its right to weigh in should the Court take on directly the issue of the constitutionality of the ADA exclusion.  While we acknowledge these bright spots, the problem created by the ADA exclusion remains.  Congress excluded transgender people from the protections of the ADA because of the stigma associated with gender dysphoria.  As long as the transgender exclusion remains within the law, the ADA fails in its promise to create a level playing field in employment for all people capable of doing the job.”

Blatt is represented by Sidney L. Gold, Neelima Vanguri and Brian Farrell of Sidney L. Gold & Associates. GLAD is providing ongoing consultation and, along with Law Professor Kevin Barry of Quinnipiac University, also filed an amicus brief, arguing that by maintaining the discriminatory exclusion, the ADA perpetrates the very thing it seeks to dismantle: “the prejudiced attitudes and ignorance of others” and the ‘inferior status’ that people with disabilities – or those “regarded-as” by others as having a disability – occupy in society.”