On his first day in office, President Trump issued an Executive Order purportedly aimed at “defending” women from so-called gender ideology extremism. This Order seeks to roll back the recognition and protections for transgender and nonbinary people. Transgender and nonbinary people have always existed – and will always exist – regardless of the President’s feelings about them. And in no way are they a threat to women. This blog will focus on the ramifications of this order from a disability rights perspective.
Part of the Order directs the Department of Justice and Secretary of Homeland Security to amend, as necessary, the Prison Rape Elimination Act (“PREA”) and the Americans with Disabilities Act (“ADA”) to ensure that “males are not detained in women’s prisons or housed in women’s detention centers.” This would bar transgender women from being detained in women’s prisons.
But this is not about prison policies.
Gender Dysphoria and the ADA
The Fourth Circuit Court of Appeals – covering Maryland, North Carolina, South Carolina, Virginia, and West Virginia – has established that gender dysphoria can qualify as a disability covered under the ADA in certain circumstances. Gender dysphoria, recognized by the Diagnostic and Statistical Manual, is significant psychological distress that results from a mismatch between one’s sex assigned at birth and one’s gender identity.
Under the ADA, individuals with gender dysphoria – like anyone with a disability – are protected from discrimination. They must not be discriminated against on that basis. In addition, they are entitled to reasonable accommodations, such as being:
- allowed to dress in conformity with their gender identity,
- called by names and pronouns consistent with their lived gender identity, and
- allowed to use the restrooms consistent with their gender identity.
Amending the ADA to exclude people with gender dysphoria in prison from ADA protection would have devastating consequences, extending far beyond incarcerated individuals.
The Broader Impact: A Slippery Slope for Disability Rights
If the ADA definition is amended to exclude people with gender dysphoria, it wouldn’t be limited to prisons. It would strip protections for transgender people in workplaces, educational institutions, housing, and public spaces. Employers could legally refuse to hire transgender individuals. Schools could deny them access to education. Housing providers could refuse to rent to them. Just for being who they really are.
Further, opening up the ADA to amendments means any congressperson can propose amendments that harm other groups or eliminate critical accommodations. What other disabilities are disfavored and might be excluded from protection? What other accommodations might be banned?
- Are sign language interpreters considered too expensive?
- Is reassigning disabled workers to vacant positions too complicated?
- Is it too troublesome to make educational materials accessible to the blind?
- Can students with learning disabilities be denied extra time on exams because it’s “unfair?”
These are not hypothetical concerns. I’ve heard these arguments in my work as a disability rights lawyer for many years. By allowing changes to the ADA, entire groups of people with disabilities could lose protections. Essential accommodations could be wiped away.
Conclusion: Defending Rights for All
This Executive Order represents a direct attack, not only on transgender individuals, but also on the broader disability community. By targeting gender dysphoria, the Trump administration jeopardizes the protections that countless people with disabilities rely on every day. We must resist attempts to undermine the ADA and fight to ensure that all people—regardless of gender identity or disability status—are treated with dignity, respect, and fairness.
About Eve Hill:
Eve Hill, one of the nation’s leading disability and civil rights attorneys, co-leads Inclusivity. She previously served as Deputy Assistant Attorney General of the U.S. Department of Justice, Civil Rights Division, where she was responsible for oversight of the Division’s disability rights enforcement and educational civil rights implementation. Her responsibilities included enforcement, regulation, and policy development regarding accessibility requirements for websites and other digital technology; Olmstead community integration requirements in employment and education; and disability rights in education, law enforcement, and health care.
About Inclusivity Strategic Consulting:
Inclusivity Strategic Consulting works to help government and private entities navigate a clear path to web accessibility to best serve all of their audiences and minimize potential liability. Inclusivity can help organizations adopt policies and procedures, priorities, and contractual requirements to make their websites and mobile apps accessible and keep them accessible into the future. Inclusivity is part of Brown, Goldstein & Levy, a leading civil rights law firm with offices in Baltimore, MD and Washington, D.C.