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Abstract

In the last few years, state legislatures have advanced a record number of bills aimed at restricting the rights of transgender and gender non-conforming people. In the 2023 legislative session alone, 510 bills were introduced across the nation that would ban gender-affirming healthcare, weaken protection from discrimination in employment, public accommodations, and hospitals, censor drag shows, limit access to books about LGBTQ people, and exclude trans people from bathrooms and locker rooms, among other things. To many, these proposed bills are efforts to exclude transgender people from public life and effectively legislate them out of existence. Such attacks are likely to fall hardest on the most marginalized and vulnerable LGBTQ people who must exist in state-run spaces such as schools, prisons, hospitals, group homes, and homeless shelters.

This Article argues that the Americans with Disabilities Act (ADA) has the potential to be a particularly effective tool for transgender people in fighting to be treated fairly in such places. Until recently, transgender people marginalized on account of their gender identity had no recourse under the ADA because Congress excluded “gender identity disorders” from the qualifying disabilities under the Act. But recently, some courts have found that Gender Dysphoria, a condition that many transgender people experience, is a covered disability under the ADA. This may allow transgender people to seek redress under the ADA when they face violent mistreatment in institutional settings. Not only does the ADA apply to many areas of life, the definition of discrimination used by the law—namely, that facially neutral policies with a disparate impact on disabled people as well as failure to provide reasonable accommodations both constitute discrimination—is also a particularly appropriate tool for addressing the barriers that many trans people face.

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