By Eve Hill
Immediately upon President Trump’s return to the Oval Office, he issued an Executive Order allegedly aimed at “defending” women from so-called gender ideology extremism. The purpose of this Order is to roll back both recognition and protections for transgender and nonbinary people. Regardless of the President’s feelings, transgender and nonbinary people have always existed and will always exist. Furthermore, transgender and nonbinary people are in no way a threat to women. This blog will focus on the ramifications of this order from a disability rights perspective.
One specific section 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.” If put into effect, this would block transgender women from being detained in women’s prisons.
But this is not about prison policies.
Gender Dysphoria and the ADA
Under precedent from the Fourth Circuit Court of Appeals, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia, 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.
The ADA protects individuals with gender dysphoria from discrimination, just the same as it protects anyone with any other disability. They must not be discriminated against on that basis. Furthermore, individuals with gender dysphoria are entitled to reasonable accommodations, including:
- to dress in conformity with their gender identity,
- to be called by names and pronouns consistent with their lived gender identity, and
- 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 for transgender and nonbinary individuals, extending far beyond those who are incarcerated.
The Broader Impact: A Slippery Slope for Disability Rights
If the ADA definition is amended to exclude people with gender dysphoria, this new rule would not be limited to prisons alone. It would introduce a ripple effect across workplaces, educational institutions, housing, and public spaces, stripping protections for transgender and nonbinary people. As a result, employers could legally discriminate and refuse to hire transgender individuals. Similarly, schools could deny them access to education and housing providers could refuse to rent to them. All of this discrimination and injustice on the basis of these people simply being who they really are.
Opening up the ADA to amendments also poses a dangerous threat to people with other disabilities because 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? The real possibility of this threat brings many concerns to mind, including:
- Will sign language interpreters be 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. If the new administration allows changes to the ADA, entire groups of people with disabilities are at risk of losing their protections. Essential accommodations could be wiped away.
Conclusion: Defending Rights for All
This Executive Order marks a direct attack, on not only transgender individuals, but the broader disability community as a whole. In targeting gender dysphoria, the Trump administration puts at risk the protections relied on by countless people with disabilities every day. We must fight to resist any and all attempts to undermine the ADA and ensure that all people—regardless of gender identity or disability status—are treated with dignity, respect, and fairness.
About Eve Hill
Eve Hill is one of the nation’s leading civil rights lawyers, known especially for her work with clients with disabilities and LGBTQ+ clients. She has been recognized by Law360 as one of just 12 “Titans of the Plaintiffs’ Bar” for 2023, as well as by Lawdragon as one of the 500 Leading Lawyers in America (2022 and 2023). Her wide-ranging experience complements Brown, Goldstein & Levy’s decades of dedication to high-impact disability rights cases and its advocacy on behalf of individuals with disabilities and their families. Eve chairs the Board of Trustees for the Judge David L. Bazelon Center for Mental Health Law, a national legal advocacy organization advancing and protecting the civil rights of adults and children with mental illness. Eve also leads Inclusivity, BGL’s Strategic Consulting Group, which works with organizations to promote the education, engagement, and employment of people with disabilities. Learn more about Eve here.
About Brown Goldstein & Levy
Founded in 1982, Brown Goldstein & Levy is a law firm based in Baltimore, Maryland, with an office in Washington, D.C. The firm is nationally recognized in a wide variety of practice areas, including complex civil and commercial litigation, civil rights, health care, family law, and criminal defense. Above all else, Brown, Goldstein & Levy is a client-centered law firm that brings decades of experience and passionate, effective advocacy to your fight for justice.
