Case 5:14-cv-04822-JLS Document 1 Filed 08/15/14 Page 6 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATELYNNBLATT,

CIVIL ACTION NO.:

Plaintiff,

v.

CABELA'S RETAIL, INC, Defendant.

JURY TRIAL DEMANDED

COMPLAINT AND JURY DEMAND

I. PRELIMINARY STATEMENT:

1. This is an action for an award of damages, declaratory and injunctive relief,

attorneys' fees and other relief on behalf of Plaintiff, Kate Lynn Blatt ("Plaintiff'), a

former employee of Defendant, Cabela's Retail, Inc. ("Defendant"), who has been

harmed by the Defendant's discriminatory employment practices.

2. This action arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§2000(e), etseq., as amended by the Civil Rights Act of 1991, at 42 U.S.C. §1981(a)

("Title VII"), the Americans with Disabilities Act, 42 U.S.C. §12101, etseq. ("ADA"),

and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §951 etseq.

II. JURISDICTION AND VENUE:

3. The jurisdiction of this Court is invoked, and venue is proper in this district,

pursuant to 28 U.S.C. §§1331 and 1391 as Plaintiffs claims are substantively based on

Title VII and the ADA.

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4. The supplemental jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1367 to consider Plaintiffs claims arising under the PHRA.
5. All conditions precedent to the institution of this suit have been fulfilled and Plaintiff has satisfied all jurisdictional prerequisites to the maintenance of this action. On May 19, 2014, a Notice ofRight to Sue was issued by the Equal Employment Opportunity Commission and this action has been filed within ninety (90) days of receipt of said notice. III. PARTIES:
6. Plaintiff, Kate Lynn Blatt ("PlaintiffBlatt"), is a female and citizen of the Commonwealth of Pennsylvania, residing therein at 343 Nichols Street, Pottsville, Pennsylvania 17901.
7. Defendant, Cabela's Retail, Inc. ("Defendant"), is a corporation duly organized and existing under the laws of the State of Nebraska, maintaining a place of business at 100 Cabela Drive, Hamburg, Pennsylvania 19526.
8. At all times relevant hereto, the Defendant was acting through its agents, servants, and employees, who were acting within the scope of their authority, course of their employment, and under the direct control of the Defendant.
9. At all times material herein, the Defendant is and has been a "person" and "employer" as defined under the ADA, Title VII, and PHRA, and is accordingly subject to the provisions of each said act.

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IV. STATEMENT OF CLAIMS: 10. At the time of her birth, Plaintiff Blatt's sex was designated male and her
parents gave her the male name "James." However, PlaintiffBlatt'smale gender designation assigned to her at birth does not conform to her female gender identity.
11. In or about October of2005, Plaintiff Blatt was diagnosed with Gender Dysphoria, also known as Gender Identity Disorder, a medical condition in which a person's gender identity does not match his or her anatomical sex at birth.
12. As a result of her diagnosis, Plaintiff Blatt has taken steps to alter her physical appearance to conform to her female gender identity, including dressing in feminine attire, growing long hair, and engaging inhormone therapy in order to change her physical features. Additionally, Plaintiff Blatt has changed her name from "James" to "Kate Lynn" in order to conform to her correct gender.
13. Plaintiff Blatt was employed by the Defendant from on or about September 17, 2006 until on or about March 1, 2007, the date of her unlawful termination.
14. During the course of her employment with the Defendant, Plaintiff Blatt held the position of Seasonal Stocker, and at all times maintained an excellent job performance rating in said capacity.
15. By way of background, PlaintiffBlatt was excited to begin her employment with the Defendant, as she is an active participant in outdoor sports, and highly knowledgeable about the same. Plaintiff Blatt felt that employment with Defendant would perfectly fit her skill set, knowledge, and interests.

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16. At the commencement of her employment with Defendant, Plaintiff Blatt was required to attend atwo (2) to three (3) day orientation. During said orientation, Plaintiff Blatt dressed in female attire and used the female restroom without issue.
17. Immediately subsequent to orientation, Plaintiff Blatt was required to order a uniform, and requested a female uniform, as other female employees wore female uniforms. After failing to receive a response from the Defendant regarding the uniform, Plaintiff Blatt ordered and began to wear a female uniform. Additionally, Plaintiff Blatt requested a nametag that displayed her name, "Kate Lynn."
18. Shortly thereafter, Sandy Gates ("Gates"), Human Resources Director, denied Plaintiff Blatt's nametag request, and forced her to wear a nametag stating that her name was "James," allegedly because employees were prohibited from wearing nametags depicting "fictitious" names. Gates further informed Plaintiff Blatt that she could obtain a nametag reading "Kate Lynn" when her name and gender marker were legally changed. Curiously, numerous male employees wore nametags depicting nicknames, such as "Rocky," "Bob," and "Jim." Further, Gates required all employees of the Defendant to refer to Plaintiff Blatt as "James" or face termination.
19. Additionally, Gates prohibited Plaintiff Blatt from using the female restroom as she previously had until she provided Gates with documentation that her gender marker had been legally changed from male to female. Accordingly, Plaintiff Blatt was required to use the male restroom, a situation that was extremely uncomfortable for her, as she identified as female. Plaintiff Blatt reluctantly agreed, although other female employees were at all times permitted to use the female restroom.

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20. In or about early October of2006, Terry (LNU), Third Shift Manager, abruptly called Plaintiff Blatt into a meeting and accused her of failing to "pull her weight." Terry further advised Plaintiff Blatt to consider leaving her employment with Defendant. Curiously, at all relevant times, Plaintiff Blatt's job performance was excellent, and Terry's critiques were completely unjustified and discriminatory.
21. Immediately thereafter, numerous employeesbegan subjecting Plaintiff Blatt to constant degrading and discriminatory comments on the basis of her sex. By way of example, Plaintiff Blatt was commonly referred to as "he/she," "ladyboy," "fag," "sinner," and "freak." Egregiously, Plaintiff Blatt was often additionally subjected to offensive questions, such as "Do you have a penis?"
22. In response, Plaintiff Blatt continually reported the discriminatory conduct, both verbally and in writing, to Lou Bowers ("Bowers"), Supervisor, who upon information and belief reported her complaints to the Defendant's upper level management, and to Gates. However, Defendant failed to conduct an investigation or take steps to cause said discriminatory conduct to cease.
23. Additionally, the Defendant treated Plaintiff Blatt significantly differently than other similarly-situated employees. By way of example, the Defendant required Plaintiff Blatt to remain secluded from other employees in one area of the store. Other Stockers stocked products throughout Defendant's store, while Plaintiff Blatt was required to stock only in Defendant's "Gifts Department." Further, while other Stockers worked in teams, Plaintiff Blatt was consistently required to work by

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herself.Theseclusion Plaintiff Blatt experienced humiliated her and made her feel like a lesser employee.
24. Further, Plaintiff Blatt was required to work on the third shift at all times. It is Plaintiff Blatt's belief that said requirement was enacted in order to keep her out of the sight of Defendant's customers.
25. In or about November of2006 and continuing throughout the course of her employment, Plaintiff Blatt applied for several promotions with Defendant for which she was well qualified. Although Plaintiff Blatt's job performance was exemplary, Defendant refused to consider her for said positions. Significantly, Bowers informed Plaintiff Blatt that Defendant's corporate office had explicitly instructed him not to promote Plaintiff Blatt, although he felt that she was well-qualified for the positions.
26. After applying for one of the aforesaid promotions, specifically the position ofMaintenance Technician, Plaintiff Blatt overheard the current Maintenance Manager state to Bowers, "Can you believe this cross-dressing gay fruit wants a job in my department? The confused sicko can't figure out that he is gay and admit it. I won't interview him under any circumstances." Although Plaintiff Blatt reported said discriminatory comment to Gates, Defendant failed to take corrective action.
27. On or about January 29, 2007, an Order was entered in the Schuylkill County Court of Common Pleas to both legally change Plaintiff Blatt's name from "James Benjamin Blatt" to "Kate Lynn Blatt," and change her gender designation from male to female.

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28. Immediately thereafter, Plaintiff Blatt provided Gates with a copy of documentation of the legal change of both her name and gender designation, and requested the use of the female restroom as reasonable accommodation, as well as a new nametag depicting her legal name. In response, Gates informed Plaintiff Blatt that she would need to send the infonnation to Defendant's corporate office and receive a response before Plaintiff Blatt could start being treated as a woman. Said response came as an unwelcome surprise to Plaintiff Blatt, as Gates had previously assured her that she would be able to change her nametag and use the female restroom as soon as her gender designation was legally changed.
29. Shortly thereafter, Gates blatantly denied Plaintiff Blatt's request to use the female restroom as reasonable accommodation, egregiously noting that because Plaintiff Blatt had not taken any time off from work, she could not have undergone sex reassignment surgery. Accordingly, Gates expressed her completely unfounded concern that because Plaintiff Blatt was not anatomically female, she could potentially rape or sexually assault a person in the female restroom. Plaintiff Blatt was extremely offended and humiliated by Gates' scomments and beliefs.
30. Initially, Bowers informed Plaintiff Blatt that the prevailing idea presented during a staff meeting was to require Plaintiff Blatt to utilize the restroom at a Dunkin Donuts establishment across the street from Respondent's store. Plaintiff Blatt adamantly refused, as said requirement would force her to leave Defendant's store every time she needed to use the restroom, and would subject her to humiliation based on the

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Defendant's belief that she did not belong in the female restroom. Further, no other female employees were required to utilize the Dunkin Donuts restroom.
31. As an alternative "solution," Gates reluctantly permitted Plaintiff Blatt to use the unisex "family" restroom in the front of Defendant's store. However, said restroom was located approximately 400 to 500 feet away from Plaintiff Blatt's work area, which was significantly further than the employeerestrooms, and was much less cleanly than the employee restrooms. Further, walking to the family restroom caused Plaintiff Blatt severe embarrassment and feelings of ostracization.
32. Although Defendant did eventually issue Plaintiff Blatt a "Kate Lynn" nametag, Plaintiff Blatt was forced to repeatedly complain to Gates in an effort to attain said nametag. Defendant issued Plaintiff Blatt three (3) nametags with an incorrect name before providing her with a nametag reading "Kate Lynn," which is her legal name, in an attempt to embarrass and degrade her.
33. On or about February 26, 2007, Plaintiff Blatt was involved in an altercation with Mercedes Ramirez ("Ramirez"), Maintenance Technician. During said altercation, Plaintiff Blatt amicably approached Ramirez and asked her a question regarding her cleaning schedule. Ramirezresponded by berating Plaintiff Blatt for causing a change in the restroom cleaningschedule, and verbally attacked her by yelling various offensive remarks and obscenities, including, but not limited to, "You're not a real woman and you never will be!" Plaintiff Blatt was extremely upset and humiliated as a result of said altercation. In response, Plaintiff Blatt immediately reported the incident to Bowers.

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34. On or about March 1, 2007, the Defendant abruptly terminated Plaintiff Blatt's employment with the Respondent, allegedly for threatening Ramirez's son during the aforementioned altercation. However, Plaintiff Blatt never made any threats toward Ramirez or her son, and in fact, was unaware that Ramirez even had a son.
35. Interestingly, Ramirez was neither terminated nor disciplined for her involvement in said altercation.
36. Plaintiff Blatt believes that Defendant's articulated reason for her termination waspretextual and that her employment was actually terminated based on her sex, her actual and/or perceived disability and/or record of impairment, and in retaliation for opposing unlawful discrimination in the workplace and requesting a reasonable accommodation for her disability.
COUNT I (Title VII- Sex Discrimination, Hostile Work Environment)
Plaintiff Blatt v. Defendant 37. Plaintiff Blatt incorporates by reference paragraphs 1 through 36 as though fully set forth at length herein. 38. The Defendant subjected Plaintiff Blatt to a hostile working environment and sex discrimination based on her gender and gender nonconformity, as detailed above. 39. The hostile work environment was severe and pervasive based on the nature of the harassment, including egregious statements made by numerous employees expressing animus towards Plaintiff Blatt's gender and gender nonconformity, the constant and unwavering harassment and derogatory comments towards Plaintiff Blatt based on her gender and gender nonconformity, and Defendant's blatant denial of

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Plaintiff Blatt's right to use the female restroom, as a female employee, because of her gender and gender nonconformity.
40. Plaintiff Blatt considered the aforementioned conduct to be discriminatory, and reported said discriminatory conduct, both verbally and in writing, to numerous management level employees of Defendant, including, but not limited to, Gates and Bowers.
41. Accordingly, Defendant was fully aware of the hostile work environment. However, despite Plaintiff Blatt's numerous complaints of discrimination, Defendant failed to conduct an investigation or otherwise cause the discriminatory conduct to cease.
42. Rather than cause the discriminatory conduct to cease, Defendant terminated Plaintiff Blatt's employment, allegedly due to an altercation with an employee. However, Defendant's reason for Plaintiff Blatt's termination is pretextual, and her employment was actually terminated because of her gender and gender nonconformity.
43. Accordingly, Defendant's discriminatory acts have deprived Plaintiff Blatt of equal employment opportunities because of her sex in violation of Title VII.
44. As a direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of Title VII, Plaintiff Blatt sustained permanent and irreparable harm, resulting in the loss of her employment, which caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, and front pay and interest due thereon.

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45. As a further direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of Title VII, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of selfesteem .
COUNT II (Title VII- Retaliation) Plaintiff Blatt v. Defendant 46. Plaintiff Blatt incorporates by reference paragraphs 1 through 45 as though fully set forth at length herein. 47. The actions ofDefendant, through its agents, servants, and employees, in subjecting Plaintiff Blatt to retaliation for opposing unlawful discrimination in the workplace, constituted a violation of Title VII. 48. Defendant terminated Plaintiff Blatt's employment in retaliation for registering numerous complaints of discrimination in the workplace. 49. The reason articulated for Plaintiff Blatt's termination is pretextual, and her employment was actually terminated in retaliation for opposing unlawful discrimination in the workplace. 50. As a direct result of the aforesaid unlawful retaliatory practices engaged in by the Defendant in violation of Title VII, Plaintiff Blatt sustained permanent and irreparable harm, resulting in the loss of her employment, which caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, and front pay and interest due thereon.

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51. As a further direct result of the aforesaid unlawful retaliatory employment practices engaged in by the Defendant in violation of Title VII, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of self-esteem.
COUNT III (PHRA- Sex Discrimination, Hostile Work Environment)
Plaintiff Blatt v. Defendant
52. Plaintiff Blatt incorporates by reference paragraphs 1 through 51 as though fully set forth at length herein.
53. The Defendant subjected Plaintiff Blatt to a hostile working environment and sex discrimination based on her gender and gender nonconformity, as detailed above.
54. The hostile work environment was severe and pervasive based on the nature of the harassment, including egregious statements made by numerous employees expressing animus towards Plaintiff Blatt's gender and gender nonconformity, the constant and unwavering harassment and derogatory comments towards Plaintiff Blatt based on her gender and gender nonconformity, and Defendant's blatant denial of Plaintiff Blatt's right to use the female restroom, as a female employee, because of her gender and gender nonconformity.
55. Plaintiff Blatt considered the aforementioned conduct to be discriminatory, and reported said discriminatory conduct, both verbally and in writing, to numerous management level employees of Defendant, including, but not limited to, Gates and Bowers.

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56. Accordingly, Defendant was fully aware of the hostile work environment. However, despite Plaintiff Blatt's numerous complaints of discrimination, Defendant failed to conduct an investigation or otherwise cause the discriminatory conduct to cease.
57. Rather than cause the discriminatory conduct to cease, Defendant terminated Plaintiff Blatt's employment, allegedly due to an altercation with an employee. However, Defendant's reason for Plaintiff Blatt's termination is pretextual, and her employment was actually terminated because of her gender and gender nonconformity .
58. Accordingly, Defendant's discriminatory acts have deprived Plaintiff Blatt of equal employment opportunities because of her sex in violation of the PHRA.
59. As a direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of the PHRA, Plaintiff Blatt sustained permanent and irreparable harm, resulting in the loss of her employment, which caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, and front pay and interest due thereon.
60. As a further direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of the PHRA, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of selfesteem.

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COUNT IV (PHRA - Retaliation) Plaintiff Blatt v. Defendant 61. Plaintiff Blatt incorporates by reference paragraphs 1 through 60 as though fully set forth at length herein. 62. The actions of Defendant, through its agents, servants, and employees, in subjecting Plaintiff Blatt to retaliation for opposing unlawful discrimination in the workplace, constituted a violation of the PHRA. 63. Defendant terminated Plaintiff Blatt's employment in retaliation for registering numerous complaints of discrimination in the workplace. 64. The reason articulated for Plaintiff Blatt's termination is pretextual, and her employment was actually terminated in retaliation for opposing unlawful discrimination in the workplace. 65. As a direct result of the aforesaid unlawful retaliatory practices engaged in by the Defendant in violation of the PHRA, Plaintiff Blatt sustained permanent and irreparable harm, resulting in the loss of her employment, which caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, and front pay and interest due thereon. 66. As a further direct result of the aforesaid unlawful retaliatory employment practices engaged in by the Defendant in violation of the PHRA, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of self-esteem.

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COUNTV (ADA- Disability Discrimination, Failure to Accommodate)
Plaintiff Blatt v. Defendant 67. Plaintiff Blatt incorporates by reference paragraphs 1 through 66 of her Complaint as though fully set forth herein. 68. The actions of the Defendant, through its agents, servants and employees, in discriminating against Plaintiff Blatt on the basis of her actual and/or perceived disabilities and/or record of impairment, and failing to provide reasonable accommodation for her disability, constituted violations of the ADA. 69. As a direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of the ADA, Plaintiff Blatt sustained permanent and irreparable harm, resulting in her termination from employment, which caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, and front pay and interest due thereon. 70. As a further direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of the ADA, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of selfesteem.
COUNT VI (ADA - Retaliation) Plaintiff v. the Defendant 71. Plaintiff incorporates by reference paragraphs 1 through 70 of her Complaint as though fully set forth herein.

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72. The actions of the Defendant, through its agents, servants and employees, in retaliating against Plaintiff Blatt for requesting a reasonable accommodation, and for opposing unlawful disability discrimination in the workplace, constituted a violation of the ADA.
73. As a direct result of the aforesaid unlawful retaliatory employment practices engaged in by the Defendant in violation of the ADA, Plaintiff Blatt sustained permanent and irreparable harm resulting in the termination of her employment, which caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, front pay, and interest due thereon.
74. As a further direct result of the aforesaid unlawful retaliatory employment practices engaged in by the Defendant in violation of the ADA, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of self-esteem.
COUNT VII (PHRA- Disability Discrimination, Failure to Accommodate)
Plaintiffv. the Defendant 75. Plaintiff Blatt incorporates by reference paragraphs 1 through 74 of her Complaint as though fully set forth herein. 76. The actions of the Defendant, through its agents, servants and employees, in discriminating against Plaintiff Blatt on the basis of her actual and/or perceived disabilities and/or record of impairment, and failing to provide reasonable accommodation for her disability, constituted violations of the PHRA.

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77. As a direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of the PHRA, Plaintiff Blatt sustained permanent and irreparable harm, resulting in her termination from employment, which caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, and front pay and interest due thereon.
78. As a further direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of the PHRA, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of selfesteem.
COUNT VI (PHRA- Retaliation) Plaintiff v. the Defendant 79. Plaintiff incorporates by reference paragraphs 1 through 78 of her Complaint as though fully set forth herein. 80. The actions of the Defendant, through its agents, servants and employees, in retaliating against Plaintiff for requesting a reasonable accommodation in the workplace, and for opposing unlawful disability discrimination, constituted a violation of the PHRA. 81. As a direct result of the aforesaid unlawful retaliatory employment practices engaged in by the Defendant in violation of the PHRA, Plaintiff Blatt sustained permanent and irreparable harm resulting in the termination of her employment, which caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, front pay, and interest due thereon .

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82. As a further direct result of the aforesaid unlawful retaliatory employment practices engaged in by the Defendant in violation of the PHRA, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of self-esteem.
PRAYER FOR RELIEF 83. Plaintiff Blatt incorporates by reference paragraphs 1 through 82 of her Complaint as though fully set forth at length herein. WHEREFORE, Plaintiff Blatt requests that this Court enter judgment in her favor and against the Defendant, and order that: a. Defendant compensate Plaintiff Blatt with a rate of pay and other benefits and emoluments of employment to which she would have been entitled had she not been subjected to unlawful discrimination. b. Defendant compensate Plaintiff Blatt with an award of front pay, if appropriate; c. Defendant pay to Plaintiff Blatt punitive damages, compensatory damages for future pecuniary losses, pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses as allowable; d. Defendant pay to Plaintiff Blatt, pre and post judgment interest, costs of suit and attorney and expert witness fees as allowed by law; e. The Court award such other relief as is deemed just and proper.

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JURY DEMAND

Plaintiff demands trial by jury.
SIDNEY L. GOLD & ASSOC., P.C. By: /s/ Sidney L. Gold, Esquire
SIDNEY L. GOLD, ESQUIRE I.D. No.: 21374 1835 Market Street, Suite 515 Philadelphia, PA 19103 Attorney for Plaintiff

DATE:

August 15, 2014

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VERIF'ICATION I hereby verify that the statements contained in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of Title 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities.
~~~
KATE LYNN BLATT, Plaintiff

 
 Case 5:14-cv-04822-JLS Document 9 Filed 11/05/14 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATELYNNBLATT,

CIVIL ACTION NO.: 14-4822

Plaintiff,

v.

CABELA'S RETAIL, INC, Defendant.

JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT AND JURY DEMAND

I. PRELIMINARY STATEMENT: 1. This is an action for an award of damages, declaratory and injunctive relief,

attorneys' fees and other relief on behalf of Plaintiff, Kate Lynn Blatt ("Plaintiff'), a

former employee of Defendant, Cabela's Retail, Inc. ("Defendant"), who has been

harmed by the Defendant's discriminatory employment practices. 2. This action arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§2000(e), et seq., as amended by the Civil Rights Act of 1991, at 42 U.S.C. §1981(a)

("Title VII"), and the Americans with Disabilities Act, 42 U.S.C. §12101, et seq.

("ADA").

II. JURISDICTION AND VENUE: 3. The jurisdiction of this Court is invoked, and venue is proper in this district,
pursuant to 28 U.S.C. §§ 1331 and 1391 as Plaintiffs claims are substantively based on

Title VII and the ADA.

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4. All conditions precedent to the institution of this suit have been fulfilled and Plaintiff has satisfied all jurisdictional prerequisites to the maintenance of this action. On May 19, 2014, a Notice ofRight to Sue was issued by the Equal Employment Opportunity Commission and this action has been filed within ninety (90) days of receipt of said notice. III. PARTIES:
5. Plaintiff, Kate Lynn Blatt ("PlaintiffBlatt"), is a female and citizen of the Commonwealth of Pennsylvania, residing therein at 343 Nichols Street, Pottsville, Pennsylvania 17901.
6. Defendant, Cabela's Retail, Inc. ("Defendant"), is a corporation duly organized and existing under the laws of the State of Nebraska, maintaining a place of business at 100 Cabela Drive, Hamburg, Pennsylvania 19526.
7. At all times relevant hereto, the Defendant was acting through its agents, servants, and employees, who were acting within the scope of their authority, course of their employment, and under the direct control of the Defendant.
8. At all times material herein, the Defendant is and has been a "person" and "employer" as defined under the ADA and Title VII and is accordingly subject to the provisions of each said act.

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IV. STATEMENT OF CLAIMS: 9. At the time of her birth, Plaintiff Blatt's sex was designated male and her
parents gave her the male name "James." However, Plaintiff Blatt's male gender designation assigned to her at birth does not conform to her female gender identity.
10. In or about October of2005, PlaintiffBlatt was diagnosed with Gender Dysphoria, also known as Gender Identity Disorder, a medical condition in which a person's gender identity does not match his or her anatomical sex at birth. Said medical condition is a disability within the meaning of the ADA in that it substantially impairs one or more ofPlaintiffBlatt's major life activities, including, but not limited to, interacting with others, reproducing, and social and occupational functioning.
11. As a result of her diagnosis, Plaintiff Blatt has taken steps to alter her physical appearance to conform to her female gender identity, including dressing in feminine attire, growing long hair, and engaging in hormone therapy in order to change her physical features. Additionally, Plaintiff Blatt has changed her name from "James" to "Kate Lynn" in order to conform to her correct gender.
12. Plaintiff Blatt was employed by the Defendant from on or about September 17, 2006 until on or about March 1, 2007, the date of her unlawful termination.
13. During the course of her employment with the Defendant, Plaintiff Blatt held the position of Seasonal Stocker, and at all times maintained an excellent job perfonnance rating in said capacity.
14. By way of background, Plaintiff Blatt was excited to begin her employment with the Defendant, as she is an active participant in outdoor sports, and highly

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knowledgeable about the same. Plaintiff Blatt felt that employment with Defendant would perfectly fit her skill set, knowledge, and interests.
15. At the commencement of her employment with Defendant, PlaintiffBlatt was required to attend a two (2) to three (3) day orientation. During said orientation, Plaintiff Blatt dressed in female attire and used the female restroom without issue.
16. Immediately subsequent to orientation, Plaintiff Blatt was required to order a uniform, and requested a female uniform as a reasonable accommodation for her disability, as other female employees wore female uniforms. After failing to receive a response from the Defendant regarding the uniform, Plaintiff Blatt ordered and began to wear a female uniform. Additionally, Plaintiff Blatt requested a nametag that displayed her name, "Kate Lynn," as an additional reasonable accommodation for her disability.
17. Shortly thereafter, Sandy Gates ("Gates"), Human Resources Director, denied Plaintiff Blatt's request for a reasonable accommodation in the form ofnametag with her name "Kate Lynn."
18. Moreover, in retaliation for requesting said accommodation, Gates forced Plaintiff Blatt to wear a nametag stating that her name was "James," allegedly because employees were prohibited from wearing nametags depicting "fictitious" names. Gates further informed Plaintiff Blatt that she could obtain a nametag reading "Kate Lynn" when her name and gender marker were legally changed, further retaliating against Plaintiff Platt for requesting an accommodation. Curiously, numerous nontransgendered, male employees wore nametags depicting nicknames, such as "Rocky,"

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"Bob," and "Jim." Further, Gates required all employees of the Defendant to refer to Plaintiff Blatt as "James" or face termination.
19. Additionally, Gates further denied and retaliated against the Complainant for requesting a reasonable accommodation by prohibiting Plaintiff Blatt from using the female restroom as she previously had until she provided Gates with documentation that her gender marker had been legally changed from male to female. Accordingly, Plaintiff Blatt was required to use the male restroom, a situation that was extremely uncomfortable for her, as she identified as female. Plaintiff Blatt reluctantly agreed, although other female employees were at all times permitted to use the female restroom.
20. In or about early October of2006, Terry (LNU), Third Shift Manager, abruptly called Plaintiff Blatt into a meeting and accused her of failing to "pull her weight." Terry further advised Plaintiff Blatt to consider leaving her employment with Defendant. Curiously, at all relevant times, Plaintiff Blatt's job performance was excellent, and Terry's critiques were completely unjustified and discriminatory.
21. Immediately thereafter, numerous employees began subjecting Plaintiff Blatt to constant degrading and discriminatory comments on the basis of her sex. By way of example, Plaintiff Blatt was commonly referred to as "he/she," "ladyboy," "fag," "sinner," and "freak." Egregiously, Plaintiff Blatt was often additionally subjected to offensive questions, such as "Do you have a penis?"
22. In response, Plaintiff Blatt continually reported the discriminatory conduct, both verbally and in writing, to Lou Bowers ("Bowers"), Supervisor, who upon information and belief reported her complaints to the Defendant's upper level

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management, and to Gates. However, Defendant failed to conduct an investigation or take steps to cause said discriminatory conduct to cease.
23. Additionally, the Defendant treated Plaintiff Blatt significantly differently than other similarly-situated, non-transgendered employees. By way of example, the Defendant required Plaintiff Blatt to remain secluded from other employees in one area of the store. Other Stockers stocked products throughout Defendant's store, while Plaintiff Blatt was required to stock only in Defendant's "Gifts Department." Further, while other Stockers worked in teams, Plaintiff Blatt was consistently required to work by herself.Theseclusion Plaintiff Blatt experienced humiliated her and made her feel like a lesser employee.
24. Further, Plaintiff Blatt was required to work on the third shift at all times. It is Plaintiff Blatt's belief that said requirement was enacted in order to keep her out of the sight of Defendant's customers.
25. In or about November of2006 and continuing throughout the course of her employment, Plaintiff Blatt applied for several promotions with Defendant for which she was well qualified. Although Plaintiff Blatt's job performance was exemplary, Defendant refused to consider her for said positions. Significantly, Bowers informed Plaintiff Blatt that Defendant's corporate office had explicitly instructed him not to promote Plaintiff Blatt, although he felt that she was well-qualified for the positions.
26. After applying for one of the aforesaid promotions, specifically the position of Maintenance Technician, Plaintiff Blatt overheard the current Maintenance Manager state to Bowers, "Can you believe this cross-dressing gay fruit wants a job in my

Case 5:14-cv-04822-JLS Document 9 Filed 11/05/14 Page 7 of 17
department? The confused sicko can't figure out that he is gay and admit it. I won't interview him under any circumstances." Although Plaintiff Blatt reported said discriminatory comment to Gates, Defendant failed to take corrective action.
27. On or about January 29, 2007, an Order was entered in the Schuylkill County Court of Common Pleas to both legally change Plaintiff Blatt's name from "James Benjamin Blatt" to "Kate Lynn Blatt," and change her gender designation from male to female.
28. Immediately thereafter, Plaintiff Blatt provided Gates with a copy of documentation of the legal change of both her name and gender designation, and requested the use of the female restroom as reasonable accommodation, as well as a new nametag depicting her legal name. In response, Gates informed Plaintiff Blatt that she would need to send the information to Defendant's corporate office and receive a response before Plaintiff Blatt could start being treated as a woman. Said response came as an unwelcome surprise to Plaintiff Blatt, as Gates had previously assured her that she would be able to change her nametag and use the female restroom as soon as her gender designation was legally changed.
29. Shortly thereafter, Gates blatantly denied Plaintiff Blatt's request to use the female restroom as reasonable accommodation, egregiously noting that because Plaintiff Blatt had not taken any time off from work, she could not have undergone sex reassignment surgery. Accordingly, Gates expressed her completely unfounded concern that because Plaintiff Blatt was not anatomically female, she could potentially rape or

Case 5:14-cv-04822-JLS Document 9 Filed 11/05/14 Page 8 of 17
sexually assault a person in the female restroom. Plaintiff Blatt was extremely offended and humiliated by Gates'scomments and beliefs.
30. Initially, in retaliation for requesting a reasonable accommodation in the form of a gender-neutral restroom, Bowers informed Plaintiff Blatt that the prevailing idea presented during a staff meeting was to require Plaintiff Blatt to utilize the restroom at a Dunkin Donuts establishment across the street from Respondent's store. Plaintiff Blatt adamantly refused, as said requirement would force her to leave Defendant's store every time she needed to use the restroom, and would subject her to humiliation based on the Defendant's belief that she did not belong in the female restroom. Further, no other non-transgendered, female employees were required to utilize the Dunkin Donuts restroom.
31. As an alternative "solution," Gates reluctantly permitted Plaintiff Blatt to use the unisex "family" restroom in the front of Defendant's store. However, said restroom was located approximately 400 to 500 feet away from Plaintiff Blatt's work area, which was significantly further than the employeerestrooms, and was much less cleanly than the employee restrooms. Further, walking to the family restroom caused Plaintiff Blatt severe embarrassment and feelings of ostracization.
32. Although Defendant did eventually issue Plaintiff Blatt a "Kate Lynn" nametag, Plaintiff Blatt was forced to repeatedly complain to Gates in an effort to attain said nametag. Defendant issued Plaintiff Blatt three (3) nametags with an incorrect name before providing her with a nametag reading "Kate Lynn," which is her legal name, in an attempt to embarrass and degrade her.

Case 5:14-cv-04822-JLS Document 9 Filed 11/05/14 Page 9 of 17
33. On or about February 26, 2007, Plaintiff Blatt was involved in an altercation with Mercedes Ramirez ("Ramirez"), Maintenance Technician. During said altercation, Plaintiff Blatt amicably approached Ramirez and asked her a question regarding her cleaning schedule. Ramirezresponded by berating Plaintiff Blatt for causing a change in the restroom cleaningschedule, and verbally attacked her by yelling various offensive remarks and obscenities, including, but not limited to, "You're not a real woman and you never will be!" Plaintiff Blatt was extremely upset and humiliated as a result of said altercation. In response, Plaintiff Blatt immediately reported the incident to Bowers.
34. On or about March 1, 2007, the Defendant abruptly terminated Plaintiff Blatt's employment with the Respondent, allegedly for threatening Ramirez's son during the aforementioned altercation. However, Plaintiff Blatt never made any threats toward Ramirez or her son, and in fact, was unaware that Ramirez even had a son.
35. Interestingly, Ramirez was neither terminated nor disciplined for her involvement in said altercation.
36. Plaintiff Blatt believes that Defendant's articulated reason for her termination waspretextual and that her employment was actually terminated based on her sex, her actual and/or perceived disability and/or record of impairment, and in retaliation for opposing unlawful discrimination in the workplace and requesting a reasonable accommodation for her disability.

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COUNT I
(Title VII- Sex Discrimination, Hostile Work Environment) Plaintiff Blatt v. Defendant
37. PlaintiffBlatt incorporates by reference paragraphs 1 through 37 as though fully set forth at length herein.
38. The Defendant subjected Plaintiff Blatt to a hostile working environment and sex discrimination based on her gender and gender nonconformity, as detailed above.
39. The hostile work environment was severe and pervasive based on the nature of the harassment, including egregious statements made by numerous employees expressing animus towards Plaintiff Blatt's gender and gender nonconformity, the constant and unwavering harassment and derogatory comments towards Plaintiff Blatt based on her gender and gender nonconformity, and Defendant's blatant denial of Plaintiff Blatt's right to use the female restroom, as a female employee, because of her gender and gender nonconformity.
40. Plaintiff Blatt considered the aforementioned conduct to be discriminatory, and reported said discriminatory conduct, both verbally and in writing, to numerous management level employees of Defendant, including, but not limited to, Gates and Bowers.
41. Accordingly, Defendant was fully aware of the hostile work environment. However, despite Plaintiff Blatt's numerous complaints of discrimination, Defendant failed to conduct an investigation or otherwise cause the discriminatory conduct to cease.
42. Rather than cause the discriminatory conduct to cease, Defendant terminated Plaintiff Blatt's employment, allegedly due to an altercation with an

Case 5:14-cv-04822-JLS Document 9 Filed 11/05/14 Page 11 of 17
employee. However, Defendant's reason for Plaintiff Blatt's termination is pretextual, and her employment was actually terminated because of her gender and gender nonconformity.
43. Accordingly, Defendant's discriminatory acts have deprived Plaintiff Blatt of equal employment opportunities because of her sex in violation of Title VII.
44. As a direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of Title VII, Plaintiff Blatt sustained permanent and irreparable harm, resulting in the loss of her employment, which caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, and front pay and interest due thereon.
45. As a further direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of Title VII, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of selfesteem.
COUNT II (Title VII- Retaliation) Plaintiff Blatt v. Defendant 46. Plaintiff Blatt incorporates by reference paragraphs 1 through 45 as though fully set forth at length herein. 47. The actions of Defendant, through its agents, servants, and employees, in subjecting Plaintiff Blatt to retaliation for opposing unlawful discrimination in the workplace, constituted a violation of Title VII.

Case 5:14-cv-04822-JLS Document 9 Filed 11/05/14 Page 12 of 17
48. Defendant terminated Plaintiff Blatt's employment in retaliation for registering numerous complaints of discrimination in the workplace.
49. The reason articulated for Plaintiff Blatt's termination is pretextual, and her employment was actually terminated in retaliation for opposing unlawful discrimination in the workplace.
50. As a direct result of the aforesaid unlawful retaliatory practices engaged in by the Defendant in violation of Title VII, Plaintiff Blatt sustained permanent and irreparable harm, resulting in the loss of her employment, which caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, and front pay and interest due thereon.
51. As a further direct result of the aforesaid unlawful retaliatory employment practices engaged in by the Defendant in violation of Title VII, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of self-esteem.
COUNT III (ADA- Disability Discrimination, Failure to Accommodate)
Plaintiff Blatt v. Defendant 52. PlaintiffBlatt incorporates by reference paragraphs 1 through 51 of her Complaint as though fully set forth herein. 53. The actions of the Defendant, through its agents, servants and employees, in discriminating against Plaintiff Blatt on the basis of her actual and/or perceived disabilities and/or record of impairment, and failing to provide reasonable accommodation for her disability, constituted violations of the ADA.

Case 5:14-cv-04822-JLS Document 9 Filed 11/05/14 Page 13 of 17
54. As a direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of the ADA, Plaintiff Blatt sustained permanent and irreparable harm, resulting in her termination from employment, which caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, and front pay and interest due thereon.
55. As a further direct result of the aforesaid unlawful discriminatory employment practices engaged in by the Defendant in violation of the ADA, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of selfesteem.
COUNT IV (ADA - Retaliation) Plaintiffv. the Defendant 56. Plaintiff incorporates by reference paragraphs 1 through 55 of her Complaint as though fully set forth herein. 57. The actions of the Defendant, through its agents, servants and employees, in retaliating against Plaintiff Blatt for requesting a reasonable accommodation, and for opposing unlawful disability discrimination in the workplace, constituted a violation of the ADA. 58. As a direct result of the aforesaid unlawful retaliatory employment practices engaged in by the Defendant in violation of the ADA, Plaintiff Blatt sustained permanent and irreparable harm resulting in the termination of her employment, which

Case 5:14-cv-04822-JLS Document 9 Filed 11/05/14 Page 14 of 17
caused her to sustain a loss of earnings, plus the value of certain benefits, plus loss of future earning power, plus back pay, front pay, and interest due thereon.
59. As a further direct result of the aforesaid unlawful retaliatory employment practices engaged in by the Defendant in violation of the ADA, Plaintiff Blatt suffered severe emotional distress, embarrassment, humiliation, and loss of self-esteem.
PRAYER FOR RELIEF 60. Plaintiff Blatt incorporates by reference paragraphs 1 through 59 of her Complaint as though fully set forth at length herein. WHEREFORE, Plaintiff Blatt requests that this Court enter judgment in her favor and against the Defendant, and order that: a. Defendant compensate PlaintiffBlatt with a rate of pay and other benefits and emoluments of employment to which she would have been entitled had she not been subjected to unlawful discrimination. b. Defendant compensate Plaintiff Blatt with an award of front pay, if appropriate; c. Defendant pay to Plaintiff Blatt punitive damages, compensatory damages for future pecuniary losses, pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses as allowable; d. Defendant pay to Plaintiff Blatt, pre and post judgment interest, costs of suit and attorney and expert witness fees as allowed by law; e. The Court award such other relief as is deemed just and proper.

Case 5:14-cv-04822-JLS Document 9 Filed 11/05/14 Page 15 of 17

JURY DEMAND

Plaintiff demands trial by jury.
SIDNEY L. GOLD & ASSOC., P.C. By: Is/ Sidney . Gold, Esquire
SIDNEY L. GOLD, ESQUIRE I.D. No.: 21374 1835 Market Street, Suite 515 Philadelphia, PA 19103 Attorney for Plaintiff

DATE:

November 5, 2014

Case 5:14-cv-04822-JLS Document 9 Filed 11/05/14 Page 16 of 17

V E R I F l C A TIO~ I hereby verify that the statements contained in this Amended Complaint are true and correct to the best of my knowledge, information and beJ]ef: 1 un.derstand that false statements herein are made subject to the penalties of Title J8 Pa. C.S .A. §4904, relating to unsworn falsificaJion to autho.ritie.s'.

M t.; J .
DATE :_ /_/

KATE LYNN .BLATT, Piaihtif£

Case 5:14-cv-04822-JLS Document 9 Filed 11/05/14 Page 17 of 17
CERTIFICATE OF SERVICE
I hereby certify that on this date I caused a true and correct copy of Plaintiffs Amended
Complaint, filed in response to Defendant's Motion to Dismiss to be served by first class regular
mail, postage prepaid and/or via electronic mail (available for viewing on the Court's ecf system)
upon the following:
Honorable Jeffrey L. Schmehl The Madison Building, Suite 401
400 Washington Street Reading, PA 19601
Christin Choi, Esquire Susan M. Guerette, Esquire
Fisher & Phillips LLP 150 N. Radnor Chester Road, Suite C300
Radnor, PA 19087 610-230-21731 Office 610-230-21511 Facsimile cchoi@ labodawyers. com sgu e rette @ laborlaywers. c o m Attorneys for Defendant
SIDNEY L. GOLD & ASSOCIATES, P.C . By: /s/ Sidney L. Gold, E quire
SIDNEY L. GOLD, ESQUIRE Attorney I.D. No.: 21374 1835 Market Street, Suite 515 Philadelphia, PA 19103 (215) 569-1999 Attorneys for Plaintiff
Dated: November 5, 2014

 
 Case 5:14-cv-04822-JFL Document 33 Filed 02/23/15 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATE LYNN BLATT
Plaintiff, v.
CABELA’S RETAIL, INC.
Defendant.

:

CIVIL ACTION NO.: 14-4822

:

:

:

:

:

HONORABLE JEFFREY L. SCHMEHL

:

ELECTRONICALLY FILED

:

BRIEF OF AMICI CURIAE GAY & LESBIAN ADVOCATES & DEFENDERS, MAZZONI CENTER, NATIONAL CENTER FOR LESBIAN RIGHTS, NATIONAL CENTER FOR TRANSGENDER EQUALITY, NATIONAL LGBTQ TASK FORCE,
AND TRANSGENDER LAW CENTER IN OPPOSITION TO DEFENDANT’S PARTIAL MOTION TO DISMISS

Case 5:14-cv-04822-JFL Document 33 Filed 02/23/15 Page 2 of 32
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................................... iii-vi STATEMENT OF INTEREST OF AMICI CURIAE.............................................................................vii-ix INTRODUCTION .................................................................................................................................................. 1 STATEMENT OF FACTS...................................................................................................................................3 ARGUMENT .......................................................................................................................................................... 3
I. GIDs AND GD ARE SERIOUS MEDICAL CONDITIONS ........................3 A. GIDs and GD are widely recognized by the national and international medical community as serious medical conditions .................................................................................................................. 4 B. GIDs are widely recognized by courts as serious medical conditions .................................................................................................................. 9 1. Federal courts’ recognition of GIDs under pre-ADA federal disability antidiscrimination law...............................................................9 2. Federal courts’ recognition of GIDs outside of the disability antidiscrimination context .........................................................................10
II. THE ADA DOES NOT EXCLUDE GD AS A MATTER OF STATUTORY INTERPRETATION.............................................................................11 A. GD is not the same as GIDs...........................................................................12 B. GD is not a sexual behavior disorder .......................................................15
III. THE ADA SHOULD NOT EXCLUDE GIDs OR GD AS A MATTER OF PUBLIC POLICY..............................................................................17 A. The ADA’s inclusion of GIDs and GD would eliminate a source of blatant, legally-sanctioned prejudice against transgender people.............................................................................................18 B. The ADA’s inclusion of GIDs and GD would provide comprehensive antidiscrimination protection to many transgender people.............................................................................................18
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C. The ADA’s inclusion of GIDs and GD would allow transgender workers to request reasonable accommodations while undergoing gender transition ..........................................................22
CONCLUSION ..................................................................................................................................................23 APPENDIX .................................................................................................................. attached
TABLE OF AUTHORITIES Cases Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011)................................................................11 Brian S. v. Delgadillo, No. H033935, 2010 WL 2933624 (Cal. Ct. App. July 28, 2010) .............................................................................................11 Brocksmith v. United States, 99 A.3d 690 (D.C. 2014) .................................................2, 17 Cain v. Hyatt, 734 F. Supp. 671 (E.D. Pa. 1990).........................................................18, 20 Doe v. United States Postal Service No. CIV.A. 84-3296, 1985 WL 9446 (D.D.C. June 12, 1985) .........................................................................9, 10 Kosilek v. Spencer, 740 F.3d 733 (1st Cir. 2014) ..............................................................13 O’Donnabhain v. C.I.R., 134 T.C. 34 (2010) ....................................................................11 Richards v. Gov’t of Virgin Islands, 579 F.2d 830 (3d Cir. 1978) ....................................11 Rohr v. Salt River Project Agric. Imp. & Power Dist., 555 F.3d 850 (9th Cir. 2009).......21 Sch. Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273 (1987)....................................18, 20 Tcherepnin v. Knight, 389 U.S. 332 (1967) .......................................................................11 Wolfe v. Horn, 130 F. Supp. 2d 648 (E.D. Pa. 2001).........................................................11 Congressional Record & Reports 135 CONG. REC. S10753 – S10755, 1989 WL 183115 (daily ed. Sept. 7, 1989) ..............16 135 CONG. REC. S10765 – S10803, 1989 WL 183216 (daily ed. Sept. 7, 1989) ........15, 16 135 CONG. REC. S11173 – S11178, 1989 WL 183785 (daily ed. Sept. 14, 1989) ......12, 15
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H.R. REP. NO. 101-485(IV) (May 15, 1990) ...............................................................12, 15 H.R. REP. NO. 101-596 (1990) (Conf. Rep.)...................................................................1, 10 H.R. REP. NO. 102-973 (1992) (Conf. Rep.)...................................................................... 10 Federal Statutes ADA Amendments Act of 2008 §§ 2(a)(1), (b)(2), Pub. L. No. 110-325, 122 Stat. 3553 (2008)...................................................................................................18, 21 § 42 U.S.C. § 12101(a)(3)..................................................................................................18 § 42 U.S.C. § 12101(a)(6)..................................................................................................18 § 42 U.S.C. § 12102(1). .....................................................................................................19 § 42 U.S.C. § 12102(2) ................................................................................................20, 21 § 42 U.S.C. § 12102(3) ......................................................................................................21 § 42 U.S.C. § 12102(4) ................................................................................................20, 21 § 42 U.S.C. § 12111(9) ......................................................................................................22 § 42 U.S.C. § 12112(b)(5)(A) ............................................................................................22 § 42 U.S.C. § 12211.......................................................................................................1, 15 Federal Regulations § 29 C.F.R. 1630.2(j)(3)(ii)................................................................................................21
Other Authorities AMERICAN MEDICAL ASSOCIATION, REMOVING FINANCIAL BARRIERS TO CARE FOR TRANSGENDER PATIENTS (2008) ..........................................................................................9 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (3rd ed. 1980).................................................................5 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (3rd ed., rev. 1987) .............................................. passim
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AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed., 1994)...................................................... passim
AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed., rev. 2000)...........................................12, 13, 17
AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed. 2013)....................................................... passim
AMERICAN PSYCHIATRIC ASSOCIATION, GENDER DYSPHORIA (2013) .........................13, 14
AMERICAN PSYCHIATRIC ASSOCIATION, POSITION STATEMENT ON ACCESS TO CARE FOR TRANSGENDER AND GENDER VARIANT INDIVIDUALS (2013) ...............................................9
AMERICAN PSYCHIATRIC ASSOCIATION, POSITION STATEMENT ON DISCRIMINATION AGAINST TRANSGENDER AND GENDER VARIANT INDIVIDUALS (2012) ................................1
AMERICAN PSYCHOLOGICAL ASSOCIATION, TRANSGENDER, GENDER IDENTITY, & GENDER EXPRESSION NON-DISCRIMINATION (2008)........................................................9
Christine Michelle Duffy, The Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, in GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE (Christine Michelle Duffy ed. Bloomberg BNA 2014) ............................................................................. passim
Dallas Denny, Transgender Communities of the United States in the Late Twentieth Century, in TRANSGENDER RIGHTS (2006)........................................4, 5
HARRY BENJAMIN, M.D., THE TRANSSEXUAL PHENOMENON (1966)...................................5
IRS Announcement Relating to O’Donnabhain, 2011-47 I.R.B. 789 (IRS ACQ 2011) ................................................................................11
Jack Drescher et al., Minding the body: Situating gender identity diagnoses in the ICD-11, INTERNATIONAL REVIEW OF PSYCHIATRY 568 (Dec. 2012) .....................4, 6
JAIME M. GRANT, ET AL., INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY, NAT’L CTR. FOR TRANSGENDER EQUALITY AND NAT'L GAY AND LESBIAN TASKFORCE 82 (2011) ...................................................2, 18
Jennifer L. Levi & Bennett H. Klein, Pursuing Protection for Transgender Through Disability, in TRANSGENDER RIGHTS 85-86 (2006) .................19, 20
Kevin Barry, Disabilityqueer: Federal Disability Rights Protection for Transgender People, 16 YALE HUM. RTS. & DEV. L.J. 1 (2013).............................2, 12
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Kevin M. Barry, Exactly What Congress Intended?, 17 EMP. RTS. & EMP. POL’Y J. 5 (2013).......................................................................20, 21 LAMBDA LEGAL, PROFESSIONAL ORGANIZATION STATEMENTS SUPPORTING TRANSGENDER PEOPLE IN HEALTH CARE (2012) .................................................................9 Michael Waterstone, Returning Veterans and Disability Law, 85 NOTRE DAME L. REV. 1081, 1122 (2010) .....................................................................18 Ruth Colker, Homophobia, AIDS Hysteria, and the Americans with Disabilities Act, 8 J. GENDER RACE & JUST. 33, 36-38, 42-44, 50 (2004) .....................................................2 U.S. Dep’t of Health & Human Servs. Dept’l App. Bd., NCD 140.3, DAB No. 2576, 2014 WL 2558402 (H.H.S. May 30, 2014) .............................................11 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT (2002) ...................................................................................................22 U.S. OFFICE OF PERSONNEL MANAGEMENT, GUIDANCE REGARDING THE EMPLOYMENT OF TRANSGENDER INDIVIDUALS IN THE FEDERAL WORKPLACE ......................................3, 7, 22 WORLD HEALTH ORGANIZATION, INTERNATIONAL CLASSIFICATION OF DISEASES F64 (10th rev. 2015) ......................................................................................6, 17 World Health Organization, WPATH ICD-11 Consensus Meeting (2013) .........................6 WORLD PROFESSIONAL ASSOCIATION FOR TRANSGENDER HEALTH, STANDARDS OF CARE (7th ed., 2012) ...........................................................................7, 8, 9
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STATEMENT OF INTEREST OF AMICI CURIAE Amici submit this brief in accordance with applicable case law and pursuant to the requirements of Federal Rule of Appellate Procedure 29. A motion requesting leave to file and permission to exceed the page limit was submitted in tandem with this brief. No party’s counsel authored this brief in whole or in part, and amici and its counsel have not received any remuneration for their participation in this proceeding from either party or other interested individuals. Gay & Lesbian Advocates & Defenders (“GLAD”) is a New England-wide legal rights organization that seeks equal justice for all persons under the law regardless of their sexual orientation, gender identity, or HIV/AIDS status. The Transgender Rights Project of GLAD seeks to establish clear legal protections for the transgender community through public impact litigation and law reform. See, e.g., Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000); Doe v. Yunits, No. 001060A, 2000 WL 33162199 (Mass. Super. Oct. 11, 2000); O’Donnabhain v. Commissioner, 134 T.C. 34 (T.C. 2010); Doe v. Regional School Unit 26, 86 A.3d 600; In re Mallon, Transsexual Surgery, DAB No. 2576 (2014). Mazzoni Center is the only health care provider in the Philadelphia region specifically targeting the unique health care and legal needs of people who are lesbian, gay, bisexual, and transgender (LGBT). Founded in 1979, Mazzoni Center has expanded over time to meet the needs of the LGBT community, now offering a full array of primary health care services, mental and behavioral health services, and LGBT-focused legal services. Mazzoni Center’s Legal Services Department provides direct legal assistance and representation to LGBT Pennsylvanians in a wide range of substantive areas. The National Center for Lesbian Rights (“NCLR”) is a national non-profit law firm with headquarters in San Francisco and an office in Washington, D.C. NCLR seeks legal protection
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for lesbian, gay, bisexual, and transgender people through impact litigation, public policy advocacy, public education, direct legal services, and collaboration with other social justice organizations and activists. Each year, NCLR serves more than 500 people in California, and more than 5,000 people in all fifty states.
The National Center for Transgender Equality (“NCTE”) is a national social justice organization devoted to ending discrimination and violence against transgender people through education and advocacy on issues of national importance to transgender people. Founded in 2003, NCTE advocates for policy reform at the federal level on a wide range of issues affecting transgender people, including employment discrimination; provides technical assistance to organizations and institutions at the state and local levels; and works to create greater public understanding of issues affecting transgender people.
Since 1973, The National LGBTQ Task Force (“Task Force”) has worked to build power, take action, and create change to achieve freedom and justice for lesbian, gay, bisexual and transgender people and their families. As a progressive social justice organization, the Task Force works toward a society that values and respects the diversity of human expression and identity and achieves equity for all.
Transgender Law Center (“TLC”) is the nation’s largest organization dedicated to advancing the rights of transgender and gender nonconforming people. TLC works to change law, policy, and attitudes so that all people can live safely, authentically, and free from discrimination regardless of their gender identity or expression. TLC has served as counsel or amicus curiae in a number of key transgender discrimination cases, including representing the complainant Mia Macy in the case that led to groundbreaking EEOC decision Macy v. Holder, App. No. 0120120821 (E.E.O.C. 2012).
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Amici respectfully submit this brief in opposition to Defendant’s Partial Motion to Dismiss to address the vital importance of allowing individuals to bring claims under the ADA when they have been discriminated against on the basis of Gender Identity Disorders and Gender Dysphoria. Very few courts have addressed, and none have analyzed, the ADA’s exclusion of Gender Identity Disorders and transsexualism in a case brought by a transgender litigant. As a result, no court has ever considered the legislative history of the ADA surrounding the exclusion, the application of the exclusion to the new diagnosis of Gender Dysphoria, the fact that neither Gender Identity Disorders (including transsexualism) nor Gender Dysphoria is a sexual behavior disorder, or the moral animus behind the exclusion. Analysis of these issues supports the argument that the ADA’s exclusion of Gender Identity Disorders and transsexualism is unconstitutional or, in the alternative, the exclusion does not apply to the new diagnosis of Gender Dysphoria.
Accordingly, Amici urge this Court to deny Defendant Cabela’s Retail, Inc.’s Partial Motion to Dismiss and hold that the ADA’s exclusion of Gender Identity Disorders and transsexualism violates equal protection under the Due Process Clause of the Fifth Amendment or, in the alternative, Gender Dysphoria is outside the scope of the exclusion as a matter of statutory interpretation. This Court should further hold that Plaintiff Blatt has stated a claim that the Defendant violated the ADA by discriminating against her on the basis of GD, failing to accommodate her GD, and retaliating against her for requesting a reasonable accommodation and opposing unlawful disability discrimination in the workplace.
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INTRODUCTION Tucked away in the last title of the ADA, entitled “Miscellaneous Provisions,” is a set of
exclusions from the ADA’s definition of disability. Specifically, the ADA excludes from its
definition of disability “homosexuality and bisexuality” because they “are not impairments and as such are not disabilities.”1 This exclusion is well-supported in medicine and law. Indeed, it is
consistent with the American Psychiatric Association’s (APA) removal of the diagnosis of homosexuality from its Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1973.2
It is also consistent with courts’ recognition that homosexuality and bisexuality were not “impairments” under the ADA’s precursor, the Rehabilitation Act of 1973.3
The ADA also excludes from coverage “gender identity disorders not resulting from physical impairments” and “transsexualism” (collectively, “GIDs”),4 but it does so for a very
different reason. Unlike homosexuality and bisexuality, the ADA does not exclude GIDs
because they “are not impairments.” Indeed, from 1980 until 2013, the DSM repeatedly
classified GIDs as serious medical conditions. Although the fifth edition of the DSM, published
in 2013, changed the underlying diagnosis by replacing GIDs with “Gender Dysphoria” (“GD”),
the DSM did not remove the diagnosis. Simply put, the ADA excludes GIDs not because they
1 42 U.S.C. § 12211; see also Christine Michelle Duffy, The Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, in GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE ch. 16 (Christine Michelle Duffy ed. Bloomberg BNA 2014). 2 AMERICAN PSYCHIATRIC ASSOCIATION, POSITION STATEMENT ON DISCRIMINATION AGAINST TRANSGENDER AND GENDER VARIANT INDIVIDUALS 2 (2012), http://www.dhcs.ca.gov/services/MH/Documents/2013_04_AC_06d_APA_ps2012_Transgen_D isc.pdf. 3 See H.R. REP. NO. 101-596, at 88 (1990) (Conf. Rep.) (“The Senate bill restates current policy under section 504 of the Rehabilitation Act of 1973 that the term ‘disability’ does not include homosexuality and bisexuality.”). 4 42 U.S.C. § 12211. As discussed below, the DSM considered transsexualism to be a subtype of GID until 1994, when it removed the diagnosis of transsexualism altogether.
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are not impairments, but rather because of the moral opprobrium of two senior senators, conveyed in the eleventh hour of a marathon day-long floor debate, who erroneously believed that GIDs were “sexual behavior disorders” undeserving of legal protection.5
The ADA’s exclusion of GIDs is without foundation in either medicine or law. As discussed below, the exclusion is inconsistent with the opinion of the national and international medical community, which has always recognized GIDs—and now, GD—as serious medical conditions that involve an incongruence between gender identity and assigned sex, not a disorder of sexual behavior. It is also inconsistent with courts’ recognition of GIDs—and now, GD—as serious medical conditions entitled to protection under disability antidiscrimination law and other laws.
Transgender people face severe and pervasive discrimination in nearly every aspect of their lives. Indeed, our society has so devalued transgender lives that many transgender individuals contemplate taking their own.6 The ADA should be part of the solution to this discrimination, not part of the problem. Amici concur with Plaintiff Blatt’s argument that the ADA’s GIDs exclusion violates equal protection under the Due Process Clause of the Fifth Amendment and urge this Court to invalidate the exclusion on constitutional grounds. See Pl.’s Mem. Opp’n. Def.’s Part’l Mot. Dismiss, at pp. 15-39.7 In the alternative, Amici urge this Court
5 See, e.g., Duffy, supra note 1, at 16-38 to -39; Kevin Barry, Disabilityqueer: Federal Disability Rights Protection for Transgender People, 16 YALE HUM. RTS. & DEV. L.J. 1, 12-26 (2013); Ruth Colker, Homophobia, AIDS Hysteria, and the Americans with Disabilities Act, 8 J. GENDER RACE & JUST. 33, 36-38, 42-44, 50 (2004). 6 See JAIME M. GRANT ET AL., INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY, NAT’L CTR. FOR TRANSGENDER EQUALITY AND NAT'L GAY AND LESBIAN TASKFORCE 82 (2011), available at http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf, cited in Brocksmith v. United States, 99 A.3d 690, 698 n.8 (D.C. 2014). 7 Although Amici agree with Plaintiff Blatt’s equal protection argument, this brief does not address that argument.
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to find that GD is outside the scope of the GIDs exclusion as a matter of statutory interpretation. Either result would provide sorely needed, comprehensive antidiscrimination protection to transgender people. It would also eliminate a source of blatant, legally-sanctioned prejudice against them.
STATEMENT OF FACTS Amici adopt and incorporate in its entirety Plaintiff Blatt’s Statement of Facts and Procedural History in her brief. See Pl.’s Mem. Opp’n. Def.’s Part’l Mot. Dismiss, at pp. 3-7.
ARGUMENT I. GIDs AND GD ARE SERIOUS MEDICAL CONDITIONS.
To understand the diagnoses of GIDs and GD, it is first helpful to understand the meaning of “transgender.” A transgender person is someone whose gender identity—that is, an individual’s internal sense of being male or female—does not align with his or her assigned sex at birth.8 Usually, people born with the physical characteristics of males psychologically identify as men, and those with the physical characteristics of females psychologically identify as women. However, for a transgender person, this is not true; the person’s body and the person’s gender identity do not match.9 A growing body of medical research suggests that this incongruence is caused by “genetics and/or in utero exposure to the ‘wrong’ hormones during the
8 See, e.g., AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 451 (5th ed. 2013) [hereinafter “DSM-5”]; U.S. OFFICE OF PERSONNEL MANAGEMENT, GUIDANCE REGARDING THE EMPLOYMENT OF TRANSGENDER INDIVIDUALS IN THE FEDERAL WORKPLACE [hereinafter “OPM GUIDANCE”], http://www.opm.gov/policy-dataoversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/; see also app. A. 9 DSM-5, supra note 8, at 452-53.
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development of the brain, such that the anatomic physical body and the brain develop in different
gender paths.”10
For many transgender people, this incongruence between gender identity and assigned
sex does not interfere with their lives; they are completely comfortable living just the way they
are.11 For some transgender people, however, the incongruence results in gender dysphoria—
i.e., a feeling of stress and discomfort with one’s assigned sex.12 Such gender dysphoria, if
clinically significant and persistent, is a serious medical condition and has been regarded as such
for well over fifty years.
A. GIDs and GD are widely recognized by the national and international medical community as serious medical conditions.
The concept of gender dysphoria as a serious medical condition first emerged in the
1950’s.13 At that time, Dr. Harry Benjamin, a New York endocrinologist, began treating people
struggling with gender identity issues by providing them with hormonal therapy and referrals for
10 Duffy, supra note 1, at 16-77 (discussing recent medical studies); see also DSM-5, supra note 8, at 457 (discussing genetic and, possibly, hormonal contribution to GD); id. at 20 (defining “mental disorders” to include dysfunctions of “biological” and “developmental”—as well as “psychological”—processes underlying mental functioning). 11 See Duffy, supra note 1, at 16-10; see also DSM-5, supra note 8, at 453 (stating that, in addition to a marked incongruence between gender identity and assigned sex, individuals with gender dysphoria exhibit “distress about this incongruence”). 12 DSM-5, supra note 8, at 451 (“Gender dysphoria as a general descriptive term refers to an individual’s affective/cognitive discontent with the assigned gender but is more specifically defined when used as a diagnostic category.”). 13 See Jack Drescher et al., Minding the body: Situating gender identity diagnoses in the ICD-11, INTERNATIONAL REVIEW OF PSYCHIATRY, at 569 (Dec. 2012), available at http://atmeev.de/download/psychoszuICD11.pdf; Dallas Denny, Transgender Communities of the United States in the Late Twentieth Century, in TRANSGENDER RIGHTS 175 (2006). Although psychiatric and medical theorizing about gender dysphoria began in the Western world in the 19th century, and physicians in Europe began performing gender reassignment surgery as early as the 1920’s, gender dysphoria and gender reassignment surgery remained little known until 1952, when the U.S. media sensationally reported ex-G.I. George Jorgensen undergoing gender reassignment surgery in Denmark and returning to the U.S. as Christine Jorgensen. Drescher et al., supra note 13, at 569.
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surgery.14 In 1966, in his influential treatise, “The Transsexual Phenomenon,” Dr. Benjamin defined “transsexualism” as a “syndrome” that results in one’s being “deeply unhappy as a member of the sex (or gender) to which he or she was assigned by the anatomical structure of the body, particularly the genitals.”15 In 1969, a medical protocol for gender reassignment was developed and, in the ensuing decade, over forty university-affiliated gender programs sprang up across the U.S., providing treatment to individuals with gender identity issues.16
In 1980, the American Psychiatric Association introduced the GID diagnosis in the third edition of the DSM. The DSM-III, as it was called, defined GIDs as “an incongruence between anatomic sex and gender identity,” and created three GID subtypes: one for adolescents and adults (“Transsexualism”), another for children (“GID of Childhood”), and a third for conditions that did not fit the diagnostic criteria of the first two: “Atypical GID.”17 In 1987, a revised version of the DSM, known as the DSM-III-R (which was the version in effect at the time the ADA was being debated), retained these three diagnoses18 and added a fourth: “GID of adolescence or adulthood, nontranssexual type.”19 In 1994, the DSM-IV combined the diagnoses
14 Denny, supra note 13, at 175. 15 HARRY BENJAMIN, M.D., THE TRANSSEXUAL PHENOMENON 11-12 (1966), available at http://www.mut23.de/texte/Harry%20Benjamin%20%20The%20Transsexual%20Phenomenon.pdf. 16 Denny, supra note 13, at 175-76. 17 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 261-66 (3rd ed.1980). 18 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 71-78 (3rd ed., rev. 1987) [hereinafter “DSM-III-R”]. The DSM-III-R renamed “Atypical GID” “GID Not Otherwise Specified.” Id. at 77-78. 19 Id. at 76-77.
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of Transsexualism and GID of Childhood into the single overarching diagnosis of “GID in children and in adolescents or adults.”20
In 2013, the DSM-5 changed the GIDs diagnosis in four important ways: it renamed the
diagnosis, it revised the diagnostic criteria underlying the diagnosis, it re-categorized the
diagnosis within the DSM, and it referenced new science supporting the physiological etiology
of the diagnosis. These changes are discussed in greater detail in Section II, below.
The international medical community’s recognition of GID has traced a similar path. The
International Classification of Diseases (ICD), published by the World Health Organization
pursuant to a consensus of 194 member states, has classified GID as a mental health condition since 1975.21 The eleventh edition of the ICD, which is expected to be published in 2017, will
rename “transsexualism”—the ICD’s GID diagnosis for adolescents and adults—“Gender
Incongruence,” characterized by “a marked and persistent incongruence between an individual’s experienced gender and the assigned sex.”22
According to the DSM-5, GD is characterized by: (1) a marked incongruence between
one’s gender identity and one’s assigned sex, which is often accompanied by a strong desire to
be rid of one’s primary and secondary sex characteristics and/or to acquire primary/secondary
20 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 532-38 (4th ed.1994) [hereinafter “DSM-IV”]. With its removal in 1994, transsexualism is no longer considered to be a mental health condition under the DSM. 21 Drescher et al., supra note 13, at 570. The ICD-9, published in 1975, classified “transsexualism” as a mental health condition. Id. The most current edition of the ICD, ICD-10, published in 1990, includes the classification “Gender Identity Disorders,” and uses “transsexualism” to refer specifically to the GID diagnosis for adults and adolescents. See WORLD HEALTH ORGANIZATION, INTERNATIONAL CLASSIFICATION OF DISEASES F64 (10th rev. 2015) [hereinafter “ICD-10”], available at http://apps.who.int/classifications/icd10/browse/2015/en#/F60-F69. 22 World Health Organization, WPATH ICD-11 Consensus Meeting, at 5 (2013), http://www.wpath.org/uploaded_files/140/files/ICD%20Meeting%20Packet-Report-Finalsm.pdf.
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sex characteristics of the other gender; and (2) intense emotional pain and suffering resulting from this incongruence.23 Among adolescents and adults, GD often begins in early childhood,
around the ages of 2-3 (“Early onset gender dysphoria”), but it may also occur around puberty or even later in life (“Late-onset gender dysphoria”).24 If left medically untreated, GD can result in debilitating depression, anxiety and, for some people, suicidality and death.25
Like other medical conditions, GD can be ameliorated through medical treatment.26
There is no single course of medical treatment that is appropriate for every person with GD.
Instead, the World Professional Association For Transgender Health, Inc. (“WPATH”) (formerly
known as “The Harry Benjamin International Gender Dysphoria Association, Inc.”), has
established internationally accepted Standards of Care (“SOC”) for the treatment of people with GID.27 The SOC were originally approved in 1979 and have undergone seven revisions through
2012. As part of the SOC, many transgender individuals with GD undergo a medically-
recommended and supervised gender transition in order to live life consistent with their gender identity.28
23 See DSM-5, supra note 8, at 452 (“The condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.”); id. at 453 (stating that, in addition to marked incongruence, “[t]here must also be evidence of distress about this incongruence”). 24 DSM-5, supra note 8, at 455-56. 25 Id. at 454-55. 26 See WORLD PROFESSIONAL ASSOCIATION FOR TRANSGENDER HEALTH, STANDARDS OF CARE 5 (7th ed., 2012) [hereinafter “SOC”], available at http://admin.associationsonline.com/uploaded_files/140/files/Standards%20of%20Care,%20V7 %20Full%20Book.pdf (“Gender dysphoria can in large part be alleviated through treatment.”); see also DSM-5, supra note 8, at 451 (stating that “many [individuals] are distressed if the desired physical interventions by means of hormone and/or surgery are not available”) (emphasis added). 27 See SOC, supra note 26, at 1. 28 See id. at 9-10; see also OPM GUIDANCE, supra note 8 (discussing gender transition).
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The current SOC recommend an individualized approach to gender transition, consisting of a medically-appropriate combination of hormone therapy, “living part time or full time in another gender role, consistent with one’s gender identity,” gender reassignment surgery, and/or psychotherapy.29 Living consistent with one’s desired gender role consists of “present[ing] consistently, on a day-to-day basis and across all settings of life, in [one’s] desired gender role,” which is “based on expert clinical consensus that this experience provides ample opportunity for patients to experience and socially adjust in their desired gender role, before undergoing irreversible surgery.”30 To complete their medical transition, some transgender individuals may only need to live part time or full time in their desired gender role without undergoing hormone therapy or surgery.31 Others may decide with their health care provider that it is medically necessary for them to undergo hormone therapy and/or gender reassignment surgery as well.32 This was the treatment course followed by Plaintiff Blatt, who, consistent with the SOC, took steps to “alter her physical appearance to conform to her female gender identity, including dressing in feminine attire, growing long hair, and engaging in hormone therapy in order to change her physical features.” Compl. at ¶ 11. She also changed her name from “James” to “Kate Lynn.” Id. The correct course of treatment for any given individual—in order for the
29 SOC, supra note 26, at 9. 30 Id. at 60-61. 31 Id. at 8 (“[W]hile many individuals need both hormone therapy and surgery to alleviate their gender dysphoria, others need only one of these treatment options and some need neither.”); see also DSM-5, supra note 8, at 454 (discussing those who resolve incongruence between gender identity and assigned sex “without seeking medical treatment to alter body characteristics”). 32 SOC, supra note 26, at 10; see also DSM-5, supra note 8, at 453 (recognizing “cross-sex medical procedure[s] or treatment regimen[s]—namely, regular cross-sex hormone treatment or gender reassignment surgery confirming the desired gender . . . .”).
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patient to achieve genuine and lasting comfort with his or her sex—can only be determined by
the treating physician and the patient.33
The American Medical Association (AMA), the American Psychiatric Association, and
the American Psychological Association, among others, have each acknowledged the necessity
of medical interventions to assist transgender individuals. According to the AMA,
An established body of medical research demonstrates the effectiveness and medical necessity of mental health care, hormone therapy and sex reassignment surgery as forms of therapeutic treatment for many people diagnosed with GID . . . . Health experts in GID, including WPATH, have rejected the myth that such treatments are “cosmetic” or “experimental” and have recognized that these treatments can provide safe and effective treatment for a serious health condition.34
B. GIDs are widely recognized by courts as serious medical conditions.
Federal courts have consistently recognized GIDs as serious medical conditions under
federal disability antidiscrimination law and other laws.
1. Federal courts’ recognition of GIDs under pre-ADA federal disability antidiscrimination law
Prior to the ADA’s passage in 1990, federal disability antidiscrimination law recognized
GIDs as impairments that may constitute a disability under the ADA’s precursor, the
Rehabilitation Act of 1973. For example, in Doe v. United States Postal Service, the plaintiff, a
33 SOC, supra note 26, at 5 (“Treatment is individualized: What helps one person alleviate gender dysphoria might be very different from what helps another person.”). 34 AMERICAN MEDICAL ASSOCIATION, REMOVING FINANCIAL BARRIERS TO CARE FOR TRANSGENDER PATIENTS 1 (2008), available at http://www.tgender.net/taw/ama_resolutions.pdf; accord. AMERICAN PSYCHIATRIC ASSOCIATION, POSITION STATEMENT ON ACCESS TO CARE FOR TRANSGENDER AND GENDER VARIANT INDIVIDUALS (2013), available at http://www.aglp.org/pages/LGBTPositionStatements.php; AMERICAN PSYCHOLOGICAL ASSOCIATION, TRANSGENDER, GENDER IDENTITY, & GENDER EXPRESSION NON-DISCRIMINATION (2008), available at http://www.apa.org/about/policy/transgender.aspx; see also LAMBDA LEGAL, PROFESSIONAL ORGANIZATION STATEMENTS SUPPORTING TRANSGENDER PEOPLE IN HEALTH CARE (2012), http://www.lambdalegal.org/sites/default/files/publications/downloads/fs_professional-orgstatements-supporting-trans-health_1.pdf.
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transgender woman, had her conditional job offer revoked after she disclosed her intent to transition and suggested that she be allowed to work as a woman rather than changing her physical appearance during her employment.35 The plaintiff brought suit under the Rehabilitation Act. The United States District Court for the District of Columbia denied the United States Postal Service’s motion to dismiss and held that the plaintiff “alleged the necessary ‘physical or mental impairment’” to state a claim for disability discrimination under the Rehabilitation Act.36
In 1990, Congress wrote GIDs out of federal disability antidiscrimination law, depriving many transgender individuals of the protections they once enjoyed.37 Congress’ complete reversal with respect to GIDs is in stark contrast to its consistent treatment of homosexuality and bisexuality, whose exclusion from the ADA “was consistent with the treatment of sexual orientation under the Rehabilitation Act.”38
2. Federal courts’ recognition of GIDs outside of the disability antidiscrimination context Federal courts have recognized GIDs as serious medical conditions in a variety of other contexts. For example, in the prisoner context, all seven of the U.S. Courts of Appeals that have been presented with the question have found that GID poses a “serious medical need” for
35 No. CIV.A. 84-3296, 1985 WL 9446, at *2-3 (D.D.C. June 12, 1985). 36 Id.; see also Duffy, supra note 1, at 16-111 to -120 (discussing cases holding the GID is disability under state disability antidiscrimination law). 37 After passing the ADA (with its GID exclusion) in 1990, Congress passed an identical exclusion to the Rehabilitation Act two years later. See H.R. REP. NO. 102-973, at 158 (1992) (Conf. Rep.). 38 See H.R. REP. NO. 101-596, at 88 (1990) (Conf. Rep.) (“The Senate bill restates current policy under section 504 of the Rehabilitation Act of 1973 that the term ‘disability’ does not include homosexuality and bisexuality.”).
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purposes of the Eighth Amendment.39 Many federal courts have ruled likewise in the context of
civil commitment.40 And the United States Tax Court held that GID “is a serious,
psychologically debilitating condition” within the meaning of the Tax Code and that the costs of
gender reassignment surgery are deductible—a decision in which the IRS subsequently
acquiesced.41
II. THE ADA DOES NOT EXCLUDE GD AS A MATTER OF STATUTORY INTERPRETATION.
Although the ADA excludes GIDs, it is silent as to GD.42 No agency charged with
enforcing the ADA, nor any court, has addressed whether the ADA’s exclusion of GIDs extends
to GD as a matter of statutory interpretation. Bearing in mind that “[r]emedial legislation is
traditionally construed broadly, with exceptions construed narrowly,”43 the ADA’s text and
legislative history strongly support the ADA’s inclusion of GD, for two reasons.
39 See, e.g., O’Donnabhain v. C.I.R., 134 T.C. 34, 62 (2010) (citing cases); see also Wolfe v. Horn, 130 F. Supp. 2d 648, 652-53 (E.D. Pa. 2001) (holding that fact question precluded summary judgment as to whether defendants “were deliberately indifferent to treating Wolfe’s gender identity disorder,” and acknowledging that courts “have consistently considered transsexualism a ‘serious medical need’ for purposes of the Eighth Amendment.”). 40 See, e.g., Battista v. Clarke, 645 F.3d 449, 455 (1st Cir. 2011). 41 O’Donnabhain, 134 T.C. at 61), acquiesced in by IRS Announcement Relating to O’Donnabhain, 2011-47 I.R.B. 789 (IRS ACQ 2011). On May 30, 2014, the U.S. Department of Health and Human Services Departmental Appeals Board invalidated its 1989 determination denying Medicare coverage of all gender reassignment surgery. U.S. Dep’t of Health & Human Servs. Dept’l App. Bd., NCD 140.3, DAB No. 2576, 2014 WL 2558402, at *1, *7-8 (H.H.S. May 30, 2014) (acknowledging that “GID is a serious medical condition”). 42 Plaintiff Blatt alleges that, “[i]n or about October of 2005, [she] was diagnosed with Gender Dysphoria, also known as Gender Identity Disorder.” Compl. at ¶ 10. Although GD was not listed in the DSM until 2013, Plaintiff Blatt alleges that her 2005 GID diagnosis also meets the 2013 GD diagnostic criteria. 43 Richards v. Gov't of Virgin Islands, 579 F.2d 830, 833 (3d Cir. 1978) (citing Tcherepnin v. Knight, 389 U.S. 332, 336 (1967)); cf. Brian S. v. Delgadillo, No. H033935, 2010 WL 2933624, at *35-36 (Cal. Ct. App. July 28, 2010) (unpublished) (narrowly interpreting state statute’s definition of “autism” to cover only those with Autistic Disorder as defined in DSM-IV-TR (2000), and rejecting expansion of definition to cover those with Autism Spectrum Disorders under DSM-5 (2013)).
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A. GD is not the same as GIDs. As the ADA’s legislative history makes clear, the ADA’s list of exclusions was drawn directly from the DSM-III-R, the version of the DSM in effect at the time the ADA was being debated.44 Because the DSM-5’s GD diagnosis bears little resemblance to the GIDs diagnosis (including its subtype, transsexualism) in all prior versions of the DSM, GD is outside the scope of the GIDs exclusion. Under the DSM-III-R, GIDs referred to one of four separate diagnoses. “Transsexualism,” the GID diagnosis for adolescents and adults, required: “(a) [p]ersistent discomfort and sense of inappropriateness about one’s assigned sex; (b) [p]ersistent preoccupation for least two years with getting rid of one’s primary and secondary sex characteristics and acquiring the secondary sex characteristics of the other sex; [and] (c) [t]he person has reached puberty.”45 In the next two versions of the DSM, the DSM-IV (1994) and DSM-IV-TR (2000), the transsexualism and childhood subtypes were combined into a single diagnosis, “GID in children, adolescents, and adults.”46 This diagnosis required that a person have a “strong and persistent cross-gender identification” and a “persistent discomfort with his or her sex or sense of inappropriateness in the gender role of that sex” that “causes clinically
44 H.R. REP. NO. 101-485(IV), at 81 (May 15, 1990) (dissenting views of Rep. William E. Dannemeyer, Rep. Joe Barton, and Rep. Don Ritter) (referencing DSM-III-R); accord. 135 CONG. REC. S11173-78, 1989 WL 183785 (daily ed. Sept. 14, 1989) (statement of Sen. Armstrong); see also Barry, Disabilityqueer, supra note 5, at 23 (discussing lead advocate Chai Feldblum’s recollection of “four pages of mental impairments literally copied from the pages of the DSM-III-R.”). 45 DSM-III-R, supra note 18, at 76. 46 DSM-IV, supra note 20, at 532-38, 785; AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 576-82 (4th ed., rev. 2000) [hereinafter “DSM-IV-TR”].
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significant distress or impairment in social, occupational, or other important areas of
functioning.”47
The DSM-5’s GD diagnosis differs substantially from the GIDs diagnosis (including the
transsexualism subtype). First and most obviously, the name of the diagnosis is different. For
well over thirty years, incongruence between one’s identity and assigned sex was considered to
be a “disorder” of identity, that is, something non-normative with the individual.48 This is no
longer the case. Under the DSM-5, incongruence is not the problem in need of treatment—
dysphoria is.49 By “focus[ing] on dysphoria as the clinical problem, not identity per se,” the
change from GID to GD destigmatizes the diagnosis.50
Second, the diagnostic criteria are different. GD replaces the previous showing of a
“strong and persistent cross-gender identification” and a “persistent discomfort” with one’s sex
or “sense of inappropriateness” in the gender role of that sex, with a “marked incongruence”
between gender identity and assigned sex.51 The criteria also include a “post-transition specifier
for people who are living full-time as the desired gender (with or without legal sanction of the
47 DSM-IV, supra note 20, at 537-38; DSM-IV-TR, supra note 46, at 581. 48 See AMERICAN PSYCHIATRIC ASSOCIATION, GENDER DYSPHORIA (2013), http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf (stating that GID connoted “that the patient is ‘disordered.’”). 49 Id. (“It is important to note that gender nonconformity is not in itself a mental disorder. The critical element of gender dysphoria is the presence of clinically significant distress associated with the condition.”). 50 DSM-5, supra note 8, at 451; AMERICAN PSYCHIATRIC ASSOCIATION, GENDER DYSPHORIA, supra note 48 (“Part of removing stigma is about choosing the right words. Replacing ‘disorder’ with ‘dysphoria’ in the diagnostic label is not only more appropriate and consistent with familiar clinical sexology terminology, it also removes the connotation that the patient is ‘disordered.’”); see also Kosilek v. Spencer, 740 F.3d 733, 737 (1st Cir. 2014), reh’g en banc granted, opinion withdrawn on other grounds (Feb. 12, 2014) (“DSM–5 replaces the term gender identity disorder with gender dysphoria to avoid any negative stigma.”). 51 DSM-5, supra note 8, at 452; id. at 814 (stating that DSM-5 “emphasiz[es] the phenomenon of ‘gender incongruence’ rather than cross-gender identification per se, as was the case in DSM-IV gender identity disorder.”).
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gender change).”52 According to the DSM-5, this specifier was “modeled on the concept of full or partial remission,” which acknowledges that hormone therapy and gender reassignment surgery may largely relieve the distress associated with the diagnosis.53 Significantly, this specifier expands the diagnosis to those who may not formerly have been diagnosed with GID— i.e., those without distress “who continue to undergo hormone therapy, related surgery, or psychotherapy or counseling to support their gender transition.”54
Third, the categorization of the GD diagnosis is different. In every version of the DSM prior to 2013, GIDs were a subclass of some broader classification, such as “Disorders Usually First Evident in Infancy, Childhood, or Adolescence,” alongside other subclasses, such as Developmental Disorders, Eating Disorders, and Tic Disorders.55 For the first time ever, the DSM categorizes the diagnosis separately from all other conditions. Under the DSM-5, GD is now literally in a class all its own.
Lastly, medical research supporting the GD diagnosis is different. Unlike the DSM’s treatment of GIDs and transsexualism, the DSM-5 includes a section entitled “Genetics and Physiology,” which explicitly discusses the genetic and, possibly, hormonal contributions to
52 AMERICAN PSYCHIATRIC ASSOCIATION, GENDER DYSPHORIA, supra note 48; see also DSM-5, supra note 8, at 453. 53 DSM-5, supra note 8, at 815; see id. at 451 (“[M]any are distressed if the desired physical interventions by means of hormone and/or surgery are not available.”); see also id. at 453, 81415 (discussing addition of posttransition specifier). 54 AMERICAN PSYCHIATRIC ASSOCIATION, GENDER DYSPHORIA, supra note 48. 55 DSM-III-R, supra note 18, at 3-4. For a graphic depiction of the organization of GIDs and GD in the various editions of the DSM, see Duffy, supra note 1, at 16-153 to -158; see also app. B.
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GD.56 These findings, together with numerous recent medical studies,57 strongly suggest that
physical impairments contribute to gender incongruence and, in turn, GD. Simply put, GD has
physical roots that neither GIDs nor transsexualism share. This is significant, because the ADA
does not exclude all GIDs—only those that “do not result from physical impairments.”58
Because the burgeoning medical research underlying GD points to a physical etiology, GD is
vastly different from GIDs and transsexualism and instead more akin to GIDs resulting from
physical impairments, the latter of which have always been covered by the ADA.
B. GD is not a sexual behavior disorder.
The ADA excludes “transsexualism . . . gender identity disorders not resulting from
physical impairments, or other sexual behavior disorders.”59 The use of the word “other” is
significant. As discussed in Plaintiff Blatt’s memorandum, see Pl.’s Mem. Opp’n. Def.’s Part’l
Mot. Dismiss, at pp. 25-26, 30-32, the ADA’s legislative history plainly demonstrates that
certain legislators intended to exclude GIDs (and the transsexualism subtype) because they
believed these conditions were sexual behavior disorders undeserving of protection.60 These
56 DSM-5, supra note 8, at 457 (“For individuals with gender dysphoria . . . some genetic contribution is suggested by evidence for (weak) familiality of transsexualism among nontwin siblings, increased concordance for transsexualism in monozygotic compared with dizygoticsame-sex twins, and some degree of heritability of gender dysphoria.”); id. (stating that, although “there appear to be increased androgen levels in . . . 46,XX individuals . . . current evidence is insufficient to label gender dysphoria . . . as a form of intersexuality limited to the central nervous system.”). 57 Duffy, supra note 1, at 16-72 to -16-74 & n.282 (citing numerous medical studies conducted in past six years that “point in the direction of hormonal and genetic causes for the in utero development of gender dysphoria”). 58 42 U.S.C. § 12211(b)(1). 59 Id. (emphasis added). 60 See, e.g., H.R. REP. NO. 101-485(IV), at 80-81 (May 15, 1990) (dissenting views of Rep. William E. Dannemeyer, Rep. Joe Barton, and Rep. Don Ritter); 135 CONG. REC. S11175, 1989 WL 183785 (daily ed. Sept. 14, 1989) (statement of Sen. Armstrong) (labeling “Transsexualism” a “Sexual Disorder”); 135 CONG. REC. S10772, 1989 WL 183216 (daily ed. Sept. 7, 1989) (statement of Sen. Helms) (discussing exclusion of “sexually deviant behavior or unlawful
15

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legislators were wrong.61 GIDs were never sexual behavior disorders; their exclusion was based
on a mischaracterization of the medical literature, namely, the erroneous conflation of sexual
behavior disorders with GIDs.
Since its inception in 1952 and continuing through to the present, the DSM has included a
classification for “Sexual Deviations,” now referred to as “Paraphilic Disorders.”62 According to
the DSM-5, Paraphilic Disorders refer to “any intense and persistent sexual interest”—other than
sexual interest in “copulation or equivalent interaction” with “a physically mature, consenting
human partner”—which either causes distress or “entail[s] personal harm or risk of harm, to
others.”63
While the placement and name of the GIDs diagnosis in the DSM has changed over
time,64 the diagnosis has never been classified as a disorder of sexual behavior; the diagnosis has
sexual practices”); id. (statement of Sen. Armstrong) (offering amendment characterizing GIDs and transsexualism as “sexual behavior disorders”); see also Duffy, supra note 1, at 16-88, 16125 to -126; app. C. 61 Legislators on both sides of the debate admitted that they did not have knowledge of the impairments they were excluding. See 135 CONG. REC. S10772, 1989 WL 183216 (daily ed. Sept. 7, 1989) (statement of Sen. Armstrong) (“I am simply not learned enough or well enough informed to suggest an amendment . . . list[ing] the specific protected categories” that the managers wish “to afford civil rights protection.”); 135 CONG. REC. S10753, 1989 WL 183115 (daily ed. Sept. 7, 1989) (statement of Sen. Harkin) (“Well, obviously I am not familiar with these disorders.”); see also app. C. 62 DSM-5, supra note 8, at 685. 63 Id. at 685-86. The DSM-5 lists eight Paraphilic Disorders: “voyeuristic disorder (spying on others in private activities), exhibitionistic disorder (exposing the genitals), frotteuristic disorder (touching or rubbing against a nonconsenting individual), sexual masochism disorder (undergoing humiliation, bondage, or suffering), sexual sadism disorder (inflicting humiliation, bondage, or suffering), pedophilic disorder (sexual focus on children), fetishistic disorder (using nonliving objects or having a highly specific focus on nongenital body parts), and transvestic disorder (engaging in sexually arousing cross-dressing).” Transvestic Disorder, formerly known as “Transvestic Fetishism” or “Transvestism,” is different from GD; those with Transvestic Disorder “do not report an incongruence between their experienced gender and assigned gender nor a desire to be the other gender; and they typically do not have a history of childhood crossgender behaviors.” Id. at 704; see also app. A. 64 See Duffy, supra note 1, at 16-153 to -158.
16

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always been grouped separately from the Paraphilic Disorders.65 In fact, the DSM-III-R, the version in effect at the time of the ADA’s passage, viewed “GID” as a disorder “usually first evident in infancy, childhood, or adolescence,” alongside eating disorders and developmental disorders—a classification hardly suggestive of a sexual behavior disorder.66 Two successive editions of the DSM, the DSM-IV (1994) and DSM-IV-TR (2000), carried this distinction forward, viewing GD as a condition that implicates gender, not sexual behavior.67
In sweeping fashion, the DSM-5 sharply disassociates GD from all other conditions, including Paraphilic Disorders.68 In so doing, the DSM-5 makes abundantly clear that GD, in a class all its own, is not a disorder of sexual behavior. In fact, by substituting GD for GIDs, the DSM-5 makes clear that GD is not a “disorder” at all—it is a dysphoria. Because GD is clearly not a sexual behavior disorder, Congress plainly did not intend to exclude it from the ADA.69 III. THE ADA SHOULD NOT EXCLUDE GIDs OR GD AS A MATTER OF PUBLIC POLICY.
As the District of Columbia Court of Appeals recently observed, “the hostility and discrimination that transgender individuals face in our society today is well-documented.”70 As discussed in Plaintiff Blatt’s memorandum, transgender people are disproportionately at risk for discrimination in almost all aspects of life, including employment, housing, education, public accommodations, and access to government services. See Pl.’s Mem. Opp’n. Def.’s Part’l Mot.
65 See id. The ICD-10, published in 1990, likewise distinguishes “Gender Identity Disorder” from “Disorders of Sexual Preference,” such as “Fetishism,” “Fetishistic transvestism,” “Exhibitionism,” “Voyeurism,” “Paedophilia,” and “Sadomasochism.” ICD-10, supra note 21. 66 See Duffy, supra note 1, at 16-153 to -158. 67 See id. 68 See id. 69 Alternatively, this Court should find that GIDs are not—and never have been—sexual behavior disorders, and strike down the GIDs exclusion altogether. 70 Brocksmith, 99 A.3d at 698.
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Dismiss, at pp. 19-21.71 Removing the ADA’s GIDs exclusion on constitutional grounds or, in
the alternative, interpreting the ADA not to exclude GD, would strengthen legal protections for
transgender people for several reasons.
A. The ADA’s inclusion of GIDs and GD would eliminate a source of blatant, legally-sanctioned prejudice against transgender people.
As one scholar has commented, “[f]ederal law has an important expressive function, especially concerning the messages it sends about disadvantaged groups.”72 The fact that
Congress went out of its way to exclude GIDs, along with a variety of distinctly different
conditions that the DSM classified as sexual behavior disorders and/or that the law treats as
criminal or reckless, sends a strong symbolic message: transgender people have no civil rights worthy of respect.73 By maintaining this exclusion, the ADA perpetuates the very thing it seeks
to dismantle: “the prejudiced attitudes or ignorance of others” and the “inferior status” that people with disabilities occupy in our society.74
B. The ADA’s inclusion of GIDs and GD would provide comprehensive antidiscrimination protection to many transgender people.
The ADA was enacted to “establish a clear and comprehensive prohibition of discrimination on the basis of disability.”75 In order to claim protection under the ADA, a person
must show that he or she is disabled—i.e., that he or she (1) actually has, (2) has a record of
71 See, e.g., GRANT ET AL., supra note 6, at 82. 72 Michael Waterstone, Returning Veterans and Disability Law, 85 NOTRE DAME L. REV. 1081, 1122 (2010). 73 Cf. Cain v. Hyatt, 734 F. Supp. 671, 680 (E.D. Pa. 1990) (“The particular associations AIDS shares with sexual fault, drug use, social disorder, and with racial minorities, the poor, and other historically disenfranchised groups accentuates the tendency to visit condemnation upon its victims.”). 74 42 U.S.C. § 12101(a)(6); Sch. Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273, 284 (1987); see also 42 U.S.C. § 12101(a)(3) (finding that “society has tended to isolate and segregate individuals with disabilities”). 75 ADA Amendments Act of 2008 § 2(a)(1), Pub. L. No. 110-325, 122 Stat. 3553 (2008).
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having, or (3) is regarded by others as having a “physical or mental impairment that substantially limits one or more major life activities.”76
The first two prongs of the ADA’s definition require the plaintiff to show that he or she has—or had—an impairment that substantially limits major life activities. Most transgender people are not substantially limited in any major life activity and therefore are not protected under the ADA. Those who are substantially limited, however, should have the same right as others to protection under the ADA. For example, some transgender people experience clinically significant dysphoria that may “substantially limit” their ability to care for themselves within the meaning of the ADA because they require regular, ongoing, and life-long medical treatment, such as ongoing psychotherapy and counseling sessions, periodic hormone treatment, long-term electrolysis sessions, and outpatient body-contouring procedures.77 Transgender people who experience distress, such as depression and anxiety,78 as a result of the incongruence between their gender identity and assigned sex may be substantially limited in a variety of other major life activities, including thinking, concentrating, sleeping, and interacting with others.79 Transgender people may also be substantially limited in the major life activity of reproduction, either because they literally cannot reproduce as a result of hormone treatments or genital surgery that renders them infertile or sterile, or they choose not to reproduce because their gender identity is not consistent with their reproductive organs.80
76 42 U.S.C. § 12102(1). 77 See Jennifer L. Levi & Bennett H. Klein, Pursuing Protection for Transgender Through Disability, in TRANSGENDER RIGHTS 85-86 (2006); see also Duffy, supra note 1, at 16-80 to -81 (citing cases). 78 See DSM-5, supra note 8, at 459. 79 See Duffy, supra note 1, at 16-81 to -82 (citing cases). 80 See id. at 16-82 to -83 (citing cases).
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The third prong of the ADA’s definition of disability (the “regarded-as” prong) is different from the first two, because it covers those whose impairments are not substantially limiting and even non-existent. The limitations with which the regarded-as prong is concerned derive not from the individual’s impairment, but rather from the “negative reactions” of others.81 As the Supreme Court stated in the seminal case of School Board of Nassau County v. Arline, Congress’ inclusion of the “regarded as” prong was an acknowledgment that “society’s accumulated myths and fears about disabilities . . . are as handicapping as are the physical limitations that flow from actual impairment.”82 Under the regarded-as prong, many transgender people may be substantially limited not as the inherent result of an impairment, but rather as a result of others’ negative reactions—namely fear, discomfort, lack of understanding, and animus.83
In 2008, the ADA Amendments Act greatly expanded the ADA’s definition of disability in two ways, making it easier for transgender people to claim protection under the law. First, under the first two prongs of the definition, the Amendments added numerous cascading rules of construction that significantly reduce the threshold showing of substantial limitation of a major life activity, and also expanded the list of “major life activities.”84 Under these new rules of construction, more transgender people would be found to be substantially limited in a major life
81 Arline, 480 U.S. at 283. 82 Id. at 284. 83 See Levi & Klein, supra note 77, at 89; see, e.g., Cain, 734 F. Supp. at 678 (holding that employee with AIDS was “handicapped” because “societal prejudices deem persons with AIDS as having . . . an impairment” that substantially major life activities) (interpreting Pennsylvania civil rights statute that mirrors ADA). 84 See 42 U.S.C. § 12102(2), (4); see generally Kevin M. Barry, Exactly What Congress Intended?, 17 EMP. RTS. & EMP. POL’Y J. 5, 24-25 (2013) (discussing ADAAA’s changes to first and second prongs of disability definition).
20

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activity.85 Second, the Amendments clarify that coverage under the “regarded as” prong turns on
adverse treatment, not the difficult-to-prove perception of an employer. The more expansive
“regarded as” prong protects nearly anyone who is adversely treated based on any impairment— whether the impairment is actual or perceived, and functionally limiting or not.86 Simply put,
virtually any person who is treated adversely based on GID or GD, whether real or perceived, would be covered under the ADA’s regarded-as prong, as amended.87
Because the discrimination at issue in this case took place in 2006 and 2007, the
Amendments to the ADA, which were enacted in 2009, do not apply. Nevertheless, because the
Amendments clarify that Congress originally intended the ADA to cover nearly all impairments,
not just those typically considered to be “disabilities,” they bolster the conclusion that GIDs and GD belong within that broad scope of coverage.88
85 Under the ADA, as amended, a court cannot consider the corrective effects of mitigating measures, such as hormone therapy, see 42 U.S.C. § 12102(4)(E); it must look at GID or GD as though the condition is currently causing distress, see id. § 12102(4)(D); it must construe the definition of disability broadly, see id. § 12102(4)(A)-(B); and it must consider the impact of GIDs or GD on a newly expanded list of “major life activities” and the operation of “major bodily functions.” 42 U.S.C. 12102(2)(A)-(B); cf. 29 C.F.R. 1630.2(j)(3)(ii) (21012) (listing mental health conditions that “will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity.”). 86 See 42 U.S.C. § 12102(3)(A); see also ADA Amendments Act of 2008 § 2(b)(2) (stating that purpose of Amendments is “to reinstate the reasoning of [Arline], which set forth a broad view of the third prong of the definition of [disability]”); see generally Barry, Exactly What Congress Intended, supra note 84, at 21-22 (discussing ADAAA’s changes to “regarded as” prong of disability definition). 87 See 42 U.S.C. § 12102(3)(A). 88 See Rohr v. Salt River Project Agric. Imp. & Power Dist., 555 F.3d 850, 861-62 (9th Cir. 2009) (“[T]he ADAAA sheds light on Congress’ original intent when it enacted the ADA. . . . While we decide this case under the ADA, and not the ADAAA, the original congressional intent as expressed in the amendment bolsters our conclusions.”).
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C. The ADA’s inclusion of GIDs and GD would allow transgender workers to request reasonable accommodations while undergoing gender transition.
Unlike other civil rights laws, the ADA explicitly defines discrimination to include the failure of an employer to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”89 Reasonable accommodations include “making existing facilities used by employees readily accessible to and usable by individuals with disabilities,” as well as “part-time or modified work schedules,” “appropriate adjustment or modifications of . . . policies,”90 and “[p]ermitting the use of accrued paid leave, or unpaid leave.”91
For transgender workers, a reasonable accommodation might include modifying policies governing restroom usage and dressing and grooming standards, as well as modifying a person’s work schedule or granting a person leave to seek counseling, hormone therapy, electrolysis, reassignment surgery, or other treatment. Although an “employer does not have to provide a reasonable accommodation that would cause an ‘undue hardship’ to the employer,”92 most accommodations for transgender workers are modest and impose no costs. Indeed, the federal government has adopted accommodations for dress codes and gender-segregated facilities as a matter of right for federal employees,93 and numerous states have done likewise.94
89 42 U.S.C. § 12112(b)(5)(A). 90 42 U.S.C. § 12111(9)(A)-(B). 91 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT (2002), http://www.eeoc.gov/policy/docs/accommodation.html#leave. 92 Id. 93 See OPM GUIDANCE, supra note 8; see also Duffy, supra note 1, at 35-23 to -26, 36-19 to -21. 94 See Duffy, supra note 1, 35-18 to -22, 36-21 to -27.
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CONCLUSION

This Court should deny Defendant Cabela’s Retail, Inc.’s Partial Motion to Dismiss and

hold that the ADA’s exclusion of GIDs and transsexualism violates equal protection under the

Due Process Clause of the Fifth Amendment or, in the alternative, GD is outside the scope of the

exclusion as a matter of statutory interpretation. This Court should further hold that Plaintiff

Blatt has stated a claim that the Defendant violated the ADA by discriminating against her on the

basis of GD, failing to accommodate her GD, and retaliating against her for requesting a

reasonable accommodation and opposing unlawful disability discrimination in the workplace.

Such a result is the correct result under the law. It would also provide sorely needed,

comprehensive antidiscrimination protection to transgender people and eliminate a source of

blatant, legally-sanctioned prejudice against them.

Respectfully Submitted,

s/Kevin Barry Kevin Barry Pro Hac Vice Quinnipiac University School of Law Legal Clinic 275 Mount Carmel Ave. Hamden, Connecticut 06518 (203) 582-3238 (tel) legalclinic@quinnipiac.edu

Dated: January 23, 2015

On Behalf of Amici Curiae

23

 
 Case 5:14-cv-04822-JFL Document 50 Filed 07/21/15 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

___________________________________

:

KATE LYNN BLATT,

:

:

Plaintiff,

:

:.

v.

: CIVIL ACTION NO. 5:14-cv-4822-JFL

:

CABELA’S RETAIL, INC.

:

:

Defendant.

:

___________________________________ :

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA The United States of America submits this Statement of Interest pursuant to 28 U.S.C. § 517.1 The United States has an interest in this litigation because Plaintiff has raised a constitutional challenge to a provision of the Americans with Disabilities Act (“ADA”), specifically 42 U.S.C. § 12211(b)(1), which excludes “transsexualism . . . [and] gender identity disorders not resulting from physical impairments” from the ADA’s definition of “disability” (the “GID Exclusion”). See Plaintiff’s Opposition to Defendant’s Motion to Dismiss (ECF No. 23); Notice of Constitutional Question (ECF No. 24). It is well-settled that, wherever possible, courts should avoid resolving cases on constitutional grounds. “If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . .
1 That statute provides: “The Solicitor General, or any other officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.” 28 U.S.C. § 517.

Case 5:14-cv-04822-JFL Document 50 Filed 07/21/15 Page 2 of 4
unless such adjudication is unavoidable.” Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944); see also Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193, 204-06 (2009); Siluk v. Merwin, 783 F.3d 421, 434 (3d Cir. 2015). The United States suggests that, under the circumstances presented in this case, the Court need not address the constitutional challenge to the GID Exclusion.
Rather, the Court first should resolve Plaintiff’s Title VII claims, as such resolution may render it unnecessary to address the constitutionality of the GID Exclusion. As presented in the First Amended Complaint (“FAC”) (ECF No. 9), the facts giving rise to Plaintiff’s Title VII and ADA claims substantially overlap. Moreover, the relief Plaintiff seeks under Title VII and the ADA is identical. See FAC ¶ 60.2 Thus, the outcome of Plaintiff’s Title VII claims could render superfluous her ADA claims and, therefore, would obviate the need to resolve the constitutional challenge to the GID Exclusion. That approach is particularly appropriate given that discrimination because of gender identity, including transgender status, constitutes sex discrimination prohibited by Title VII. See e.g., Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004); Schroer v. Billington, 577 F. Supp. 2d 293, 306-08 (D.D.C. 2008); Memorandum from the Attorney General, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964, 2 (Dec. 15, 2014), http://www.justice.gov/file/188671/download.
Accordingly, 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
2 Plaintiff’s Complaint includes four counts: (I) Title-VII Sex Discrimination, Hostile Work Environment; (II) Title VII-Retaliation; (III) ADA-Disability Discrimination, Failure to Accommodate; and (IV) ADA-Retaliation. Each count contains an identical description of Plaintiff’s alleged damages. See FAC ¶¶ 44-45, 50-51, 54-55, 58-59. Thus, the relief sought by Plaintiff equally applies to all claims. Specifically, Plaintiff seeks: lost wages and benefits; front pay; punitive damages; compensatory damages; interest; and attorneys’ fees. See FAC ¶ 60.
2

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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.

Dated: July 21, 2015

Respectfully submitted,
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
KATHLEEN R. HARTNETT Deputy Assistant Attorney General
JENNIFER D. RICKETTS Branch Director
JOSHUA E. GARDNER Assistant Branch Director
/s/ Emily B. Nestler EMILY B. NESTLER Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Tel: (202) 616-8489 Fax: (202) 616-8470 emily.b.nestler@usdoj.gov
Counsel for the United States of America

3

Case 5:14-cv-04822-JFL Document 50 Filed 07/21/15 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on July 21, 2015, the foregoing United States’ Statement of Interest was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
/s/ Emily B. Nestler EMILY B. NESTLER Trial Attorney United States Department of Justice, Civil Division

 
 Case 5:14-cv-04822-JFL Document 67 Filed 11/16/15 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

___________________________________

:

KATE LYNN BLATT,

:

:

Plaintiff,

:

:.

v.

: CIVIL ACTION NO. 5:14-cv-4822-JFL

:

CABELA’S RETAIL, INC.

:

:

Defendant.

:

___________________________________ :

SECOND STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA The United States of America submits this Second Statement of Interest pursuant to 28 U.S.C. § 517,1 and in accordance with the Court’s Order of September 21, 2015 (ECF No. 62). The United States has an interest in this litigation because Plaintiff has raised a constitutional challenge to a provision of the Americans with Disabilities Act (“ADA”), specifically 42 U.S.C. § 12211(b)(1), which excludes “transsexualism . . . [and] gender identity disorders not resulting from physical impairments” from the ADA’s definition of “disability” (the “GID Exclusion”). See Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) (ECF No. 23); Notice of Constitutional Question (ECF No. 24). The United States suggests that resolution of the constitutional challenge to the GID Exclusion may be avoided as a matter of statutory construction. As
1 28 U.S.C. § 517 provides: “The Solicitor General, or any other officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.” See 28 U.S.C. § 517.

Case 5:14-cv-04822-JFL Document 67 Filed 11/16/15 Page 2 of 7
explained below, under a reasonable interpretation of the statute, Plaintiff’s gender dysphoria falls outside of the scope of the GID Exclusion because a growing body of scientific evidence suggests that it may “result[] from [a] physical impairment[].” This interpretation of the GID Exclusion would allow the Court to avoid the constitutional question, and thus is compelled by the doctrine of constitutional avoidance.2
It is well-settled that, if possible, courts should avoid resolving cases on constitutional grounds. “If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.” Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944); see also Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193, 204-06 (2009). “[W]hen deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail.” Clark v. Martinez, 543 U.S. 371, 381-82 (2005); see also Siluk v. Merwin, 783 F.3d 421, 434 (3d Cir. 2015) (“If a statute can be construed two ways, ‘by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided,’ our duty is to ‘adopt the latter.’” (quoting United States v. Edmonds, 80 F.3d 810, 819 (3d Cir. 1996))).
The GID Exclusion excepts from the ADA’s definition of “disability” those “gender identity disorders not resulting from physical impairments.” 42 U.S.C. § 12211(b) (emphasis added). The statute does not define the italicized phrase, nor does the legislative history shed any light. But the applicable regulations broadly define the term “physical impairment” to mean
2 The United States takes no position on the merits of Plaintiff’s ADA claim, including whether plaintiff suffers “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102.
2

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“[a]ny physiological disorder or condition” affecting various body systems including “neurological,” “reproductive,” or “genitourinary.” 28 C.F.R. § 35.104. This definition is derived from the regulations implementing the Rehabilitation Act, the federal-sector analogue to the ADA. See 56 Fed. Reg. 35694, 35698 (July 26, 1991). Congress, in the ADA, required courts “to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.” Bragdon v. Abbott, 524 U.S. 624, 631-32 (1998) (citing 42 U.S.C. § 12201(a)). And those regulations, which were in effect at the time that Congress was considering the ADA, explain that the broad coverage of the term “physical impairment” was designed to include “any condition which is . . . physical but whose precise nature is not at present known,” 42 Fed. Reg. 22676, 22686 (May 4, 1977), thus leaving room for new scientific developments.
This statutory and regulatory background makes clear that, as used in the GID Exclusion, the phrase “resulting from a physical impairment” broadly encompasses GIDs rooted in biology or physiology, even if the precise etiology is not yet definitively understood. In other words, the statute distinguishes between two categories of GIDs: those that have a physical cause and those that do not. Whether a particular GID falls within the scope of the GID Exclusion (and outside the scope of the ADA’s protections) turns, then, on whether it “result[s] from [a] physical impairment[]” – that is, whether it has a physical basis.
As the amici curiae point out, “the burgeoning medical research underlying [gender dysphoria] points to a physical etiology.” See Br. of Amici Curiae at 15 & n.57 (ECF No. 26-1) (“[N]umerous medical studies conducted in the past six years . . . ‘point in the direction of hormonal and genetic causes for the in utero development of gender dysphoria.’” (quoting Christine Michelle Duffy, The Americans with Disabilities Act of 1990 and the Rehabilitation
3

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Act of 1973, in GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE ch.16, at 16-72 to 16-74 & n.282 (Christine Michelle Duffy ed. Bloomberg BNA 2014))); see also Aruna Saraswat, MD, Jamie D. Weinand, BA, BS & Joshua D. Safer, MD, Evidence Supporting the Biologic Nature of Gender Identity, 21 ENDOCRINE PRACTICE 199, 199-202 (Feb.2, 2015) (providing a review of data in support of a “fixed, biologic basis for gender identity” and concluding that “current data suggest a biologic etiology for transgender identity”); E.S. Smith, J. Junger, B. Derntil & U. Habel, The Transexual Brain – a Review of Findings on the Neural Basis of Transsexualism, NEUROSCIENCE AND BIOBEHAVORIAL REVIEWS (2015) (unedited manuscript, accepted for publication) (citing numerous studies and concluding that “[t]he available data from structural and functional neuroimaging-studies promote the view of transsexualism as a condition that has biological underpinnings”). While no clear scientific consensus appears to exist regarding the specific origins of gender dysphoria (i.e., whether it can be traced to neurological, genetic, or hormonal sources), the current research increasingly indicates that gender dysphoria has physiological or biological roots.
This emerging scientific view must be assessed in light of the obligation to construe the ADA’s protections broadly (and thus to treat the GID Exclusion narrowly). Because “[t]he ADA is a remedial statute, designed to eliminate discrimination against the disabled in all facets of society, . . . it must be broadly construed to effectuate its purposes.” Disabled in Action of Penn. v. Southeastern Penn. Transp. Auth., 539 F.3d 199, 208 (3d Cir. 2008) (internal quotations and citation omitted). This principle is reflected in the language of the statute itself. See 42 U.S.C. § 12102(4)(A) (“The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this
4

Case 5:14-cv-04822-JFL Document 67 Filed 11/16/15 Page 5 of 7
chapter.”). And an exception – like the GID Exclusion – to a statute’s “‘general statement of
policy’ is sensibly read ‘narrowly in order to preserve the primary operation of the [policy].’”
City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731 (1995) (quoting Commissioner v.
Clark, 489 U.S. 726, 739 (1989)). This approach is reinforced by the broad regulatory definition
of “physical impairment” discussed above. See Bragdon, 524 U.S. at 632.
In light of the evolving scientific evidence suggesting that gender dysphoria may have a
physical basis, along with the remedial nature of the ADA and the relevant statutory and
regulatory provisions directing that the terms “disability” and “physical impairment” be read
broadly, the GID Exclusion should be construed narrowly such that gender dysphoria falls
outside its scope.3 While the United States believes that this is the best interpretation of the
statute, it is, at the very least, a reasonable one.4 As such, the Court should adhere to the well-
established doctrine of constitutional avoidance, should decline to address the constitutional
3 Even assuming arguendo that current medical knowledge were to indicate that all known GIDs “result[] from physical impairments,” that would not render the GID Exclusion meaningless within the context of the ADA. The statute continues to require that an asserted GID that does “not result[] from physical impairment” must be excluded from coverage. If our evolving understanding of GIDs has changed the scope of the Exclusion, that would reflect the ADA’s own distinction between GIDs with a physical cause and those without such a cause – a distinction drawn by Congress and inherent in the language of the GID Exclusion itself.
4 The legislative history does not address the question of when a GID should be understood as “resulting from [a] physical impairment[],” such that it would fall outside the scope of the GID Exclusion. The legislative history regarding the GID Exclusion comes from debate of the ADA on the floor of the U.S. Senate, but the version of the Exclusion being considered at that time did not include an exception for GIDs resulting from physical impairments. See 135 Cong. Rec. S10765-01, 1989 WL 183216, at *S10785 (Sept. 7, 1989). That language was added by the House late in the legislative process, with little explanation. See Pl.’s Opp’n at 14-15 (discussing the origin of the “not resulting from physical impairments” language and the absence of legislative history). Whatever Congress intended, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (explaining that while Congress might not have had “male-on-male sexual harassment in the workplace” in mind when enacting Title VII, such conduct still falls within the statute’s plain text and thus within its purview).
5

Case 5:14-cv-04822-JFL Document 67 Filed 11/16/15 Page 6 of 7
challenge to the GID Exclusion, and should instead adopt this proposed construction, under which Plaintiff’s gender dysphoria would not be excluded from the ADA’s definition of “disability.”5

Dated: November 16, 2015

Respectfully submitted,
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
SARAH LEVINE Deputy Assistant Attorney General
JENNIFER D. RICKETTS Branch Director
JOSHUA E. GARDNER Assistant Branch Director
/s/ Emily B. Nestler EMILY B. NESTLER Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Tel: (202) 616-8489 Fax: (202) 616-8470 emily.b.nestler@usdoj.gov
Counsel for the United States of America

5 The United States respectfully reserves the right to file a statement of interest, or intervene to address the constitutionality of the GID Exclusion, in the event the Court determines that it cannot avoid reaching the issue.
6

Case 5:14-cv-04822-JFL Document 67 Filed 11/16/15 Page 7 of 7
CERTIFICATE OF SERVICE I hereby certify that on November 16, 2015, the foregoing United States’ Second Statement of Interest was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
/s/ Emily B. Nestler EMILY B. NESTLER Trial Attorney United States Department of Justice, Civil Division

 
 Case 5:14-cv-04822-JFL Document 82 Filed 05/18/17 Page 1 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA __________________________________________

KATE LYNN BLATT,

:

:

Plaintiff,

:

:

v.

:

:

CABELA’S RETAIL, INC.,

:

:

Defendant.

:

__________________________________________

No. 5:14-cv-04822

O P I N I O N

Defendant Cabela’s Retail, Inc.’s Partial Motion to Dismiss, ECF No. 13 – Denied

Joseph F. Leeson, Jr.

May 18, 2017

United States District Judge

This action arises under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 (ADA). Presently before the Court is Defendant Cabela’s Retail, Inc.’s Partial Motion to Dismiss. Cabela’s seeks dismissal of Count III (ADA – Disability Discrimination, Failure to Accommodate) and Count IV (ADA – Retaliation) of Plaintiff Kate Lynn Blatt’s Amended Complaint because Blatt has failed to state a claim upon which relief can be granted. For the reasons set forth below, Cabela’s motion is denied.
The defendant bears the burden of demonstrating that a plaintiff has failed to state a claim upon which relief can be granted. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). This Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted).
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court recognized that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). In Ashcroft v.

1

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Iqbal, 556 U.S. 662 (2009), the Court subsequently laid out a two-part approach to reviewing a motion to dismiss under Rule 12(b)(6).
First, the Court observed, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. at 678. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to survive the motion; “instead, ‘a complaint must allege facts suggestive of [the proscribed] conduct.’” Id.; Phillips, 515 F.3d at 233 (quoting Twombly, 550 U.S. at 563 n.8). While Rule 8, which requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” was “a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79 (“Rule 8 . . . demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” (citing Twombly, 550 U.S. at 555)); see Fed. R. Civ. P. 8(a)(2). For “without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice’ but also the ‘grounds’ on which the claim rests.” Phillips, 515 F.3d at 232 (citing Twombly, 550 U.S. at 555 n.3).
Second, the Court emphasized, “only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 678. Only if “the ‘[f]actual allegations . . . raise a right to relief above the speculative level’” has the plaintiff stated a plausible claim. Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 555). If “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “Detailed factual allegations” are not required, id. at 678 (quoting Twombly, 550 U.S. at 555), but a claim must be “nudged . . . across the line from conceivable to plausible,” id. at 680 (quoting Twombly, 550 U.S. at 570).
“The plausibility standard is not akin to a ‘probability requirement,’” but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”’” Id. (quoting Twombly, 550 U.S. at 557)).
According to the Amended Complaint, in October 2005, Blatt was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder,” which substantially limits one or more of Blatt’s major life activities, including, but not limited to, interacting with others, reproducing, and social and occupational functioning. Am. Compl. ¶ 10, ECF No. 13. Blatt alleges that shortly after she was hired by Cabela’s in September 2006, Cabela’s began to discriminate against her on the basis of her sex and her disability, in violation of Title VII of the Civil Rights Act and the ADA, and that Cabela’s retaliated against her for opposing this
2

Case 5:14-cv-04822-JFL Document 82 Filed 05/18/17 Page 3 of 6

discrimination, also in violation of these statutes. Id. ¶¶ 11-32. Blatt further alleges that in February 2007, Cabela’s terminated her employment based on her sex and disability. Id. ¶¶ 3334.
The stated purpose of the ADA is to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). In pursuit of this purpose, Congress opted to define the scope of the statute’s coverage by means of a flexible and broad definition of “disability,” namely, “a physical or mental impairment that substantially limits one or more major life activities of [an] individual.” Id. § 12102(1)(A). Standing in contrast to this broad definition of disability, there are a few exceptions to the ADA’s coverage. The provision at issue in this case, 42 U.S.C. § 12211, excludes from ADA coverage approximately one dozen conditions, including gender identity disorders.
Cabela’s contends that § 12211’s reference to gender identity disorders applies to Blatt’s condition and that the provision therefore excludes her condition from the ADA’s scope. Blatt responds that, if that is the case, then § 12211’s exclusion of gender identity disorders violates her equal protection rights.
The constitutional-avoidance canon prescribes that “[w]hen the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that [the court] will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” United States v. Witkovich, 353 U.S. 194, 201 (1957) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). Thus, if there is a “fairly possible” interpretation of § 12211 that permits the Court to avoid the constitutional question Blatt has raised, the Court must adopt that interpretation. As explained below, there is indeed such an interpretation, namely, one in which the term gender identity disorders is read narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.1
Beginning with the text of the provision, the exceptions listed in § 12211 can be read as falling into two distinct categories: first, non-disabling conditions that concern sexual orientation or identity, and second, disabling conditions that are associated with harmful or illegal conduct.2

1

By contrast, Cabela’s suggested interpretation aligns with the term’s definition in the revised third edition

of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (the current

edition at the time of the drafting of the ADA), where the term gender identity disorders is defined as broadly

encompassing any disorder essentially marked by “an incongruence between assigned sex . . . and gender identity.”

See Diagnostic and Statistical Manual of Mental Disorders 71 (3d ed. revised 1987).

2

The first category includes homosexuality and bisexuality, see 42 U.S.C. § 12211(a), whereas the second

category includes pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, pyromania, and

“psychoactive substance use disorders resulting from current illegal use of drugs,” see 42 U.S.C. § 12211(b).

The legislative history shows that Congress discussed the § 12211 exclusions in terms of these two distinct

categories. First, there was a concern among some members of Congress that the bill would include “sexual

3

Case 5:14-cv-04822-JFL Document 82 Filed 05/18/17 Page 4 of 6

If the term gender identity disorders were understood, as Cabela’s suggests, to encompass disabling conditions such as Blatt’s gender dysphoria, then the term would occupy an anomalous place in the statute, as it would exclude from the ADA conditions that are actually disabling but that are not associated with harmful or illegal conduct. But under the alternative, narrower interpretation of the term, this anomaly would be resolved, as the term gender identity disorders would belong to the first category described above.
This narrower interpretation also comports with the mandate of the Court of Appeals for the Third Circuit that the ADA, as “a remedial statute, designed to eliminate discrimination against the disabled in all facets of society, . . . must be broadly construed to effectuate its purposes.” See Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199, 208-09 (3d Cir. 2008) (quoting Kinney v. Yerusalim, 812 F. Supp. 547, 551 (E.D. Pa. 1993)). Thus, any exceptions to the statute, such as those listed in § 12211, should be read narrowly in order to permit the statute to achieve a broad reach. See Bonkowski v. Oberg Indus., 787 F.3d 190, 195 (3d Cir. 2015) (“Following traditional canons of statutory interpretation, remedial statutes should be construed broadly to extend coverage and their exclusions or exceptions should be construed narrowly.” (quoting Cobb v. Contract Transp., Inc., 452 F.3d 543, 559 (6th Cir. 2006))). This interpretation is also consistent with the legislative history of § 12211, which reveals that Congress was careful to distinguish between excluding certain sexual identities from the ADA’s definition of disability, on one hand, and not excluding disabling conditions that persons of those identities might have, on the other hand.3
In view of these considerations, it is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have —such as Blatt’s gender dysphoria, which substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning. Because this interpretation allows the Court to avoid the constitutional questions raised in this

preference as a disability or a protected class of individuals.” See The Americans with Disabilities Act of 1989:

Hearing on H.R. 2273 Before the Subcomms. on Emp’t Opportunities & Select Educ. of the H. Comm. on Educ. &

Labor 101 Cong. 14 (1989) (statement of Rep. Bartlett, Member, H. Comm. on Education and Labor). Second, there

was a separate concern that the ADA “could protect individuals from discrimination on the basis of a variety of

socially unacceptable, often illegal, behavior if such behavior is considered to be the result of a mental illness,”

including such conditions as “compulsive gambling, pedophilia, and kleptomania.” 135 Cong. Rec. S10765-01,

S10796 (daily ed. Sept. 7, 1989) (statement of Sen. Rudman), 1989 WL 183216.

3

For example, during the Senate debate, in response to inquiries about the proposed bill’s coverage of

homosexuality, HIV, and AIDS, Senator Thomas Harkin, a sponsor of the bill, clarified that although homosexuality

itself would not meet the definition of a disability under the ADA, that would not prevent a person who is gay from

receiving coverage under the statute if the person had a disability. See 135 Cong. Rec. S10765-01, S10767 (daily ed.

Sept. 7, 1989), 1989 WL 183216. Similarly, the House Judiciary Committee commented that “[i]ndividuals who are

homosexual or bisexual and are discriminated against because they have a disability, such as infection with the

Human Immunodeficiency Virus, are protected under the ADA,” and the Committee “specifically rejected

amendments to exclude homosexuals with certain disabilities from coverage.” H.R. Rep. 101-485, at 76 (1990),

reprinted in 1990 U.S.C.C.A.N. 445, 499.

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Case 5:14-cv-04822-JFL Document 82 Filed 05/18/17 Page 5 of 6
case, it is the Court’s duty to adopt it. Accordingly, Blatt’s condition is not excluded by § 12211 of the ADA, and Cabela’s motion to dismiss Blatt’s ADA claims on this basis is denied.
Cabela’s acknowledges that its motion to dismiss Blatt’s disability discrimination claims rests on the Court’s interpretation of § 12211. With respect to Blatt’s ADA retaliation claim, however, Cabela’s contends that even if Blatt has alleged a disability covered by the ADA, she has nevertheless failed to allege that she engaged in protected activity by opposing disability discrimination in her workplace. Specifically, Cabela’s contends that “the Amended Complaint contains allegations that [Blatt] reported conduct that she alleges was discriminatory based on her sex, not any disability.” Def.’s Mem. Supp. Mot. 10, ECF No. 13-1. Further, Cabela’s contends that Blatt has failed to allege that she engaged in protected activity by asking for an accommodation for a disability or that Cabela’s took an adverse employment action against her because of her alleged request for an accommodation.
Blatt responds that her Amended Complaint fairly alleges that she continually reported to her superior that she was subject to degrading and discriminatory comments on the basis of her disability, that she requested a female nametag and uniform and use of the female restroom as accommodations for her disability, and that as a result of requesting these accommodations she was subjected to a “pattern of antagonism” prior to her termination. Cabela’s replies that Blatt’s allegations that she was temporarily forced to wear an inaccurate name tag and was not allowed to use the female restroom do not amount to a “pattern of antagonism.”
To state an ADA retaliation claim, Blatt must allege that: (1) she engaged in a protected activity; (2) she experienced an adverse employment action following the protected activity; and (3) there is a causal link between the protected activity and the adverse employment action. See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). Ordinarily, a causal connection may be shown by “(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). A “pattern of antagonism” is a “consistent and continuous” pattern of conduct, which can include a “‘constant barrage of written and verbal warnings’” as well as “‘disciplinary action.’” See Bartos v. MHM Corr. Servs., Inc., 454 F. App’x 74, 79 (3d Cir. 2011) (quoting Robinson v. Se. Pa. Transp. Auth., 982 F.2d 892, 895 (3d Cir. 1993)).
Here, Blatt has plausibly alleged that she engaged in protected activity by reporting discrimination and requesting accommodations for her disability. She has also plausibly alleged that she was subjected to a “pattern of antagonism” as a result of this activity, including Cabela’s allegedly intentional and repeated refusal to provide her with a correct name tag.
5

Case 5:14-cv-04822-JFL Document 82 Filed 05/18/17 Page 6 of 6 The Court, accepting the allegations of the Amended Complaint as true, as it is required to do at this stage of the case, denies Cabela’s request to dismiss Count III and Count IV of the Amended Complaint for the reasons set forth above. The case will be permitted to proceed to discovery, inter alia, on the facts that may or may not exist to support the claims and defenses set forth in the pleadings. A separate order follows.
BY THE COURT: /s/ Joseph F. Leeson, Jr._____________ JOSEPH F. LEESON, JR. United States District Judge
6

 
 Case 5:14-cv-04822-JFL Document 95 Filed 09/18/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATE LYNN BLATT,
V. CABELA’S RETAIL, INC., et al,

Civil Action No. 14-4822 JFL

ORDER
AND NOW, TO WIT: This 18TH day of SEPTEMBER, 2017, it having been reported that the issues between the parties in the above action have been settled and upon Order of the Court pursuant to the provisions of Rule 41.1(b) of the Local Rules of Civil Procedure of this Court (effective January 1, 1970), it is
ORDERED that the above action is DISMISSED with prejudice, pursuant to agreement of counsel without costs. The Court intends to retain jurisdiction for ninety (90) days from now, and any settlement agreement is approved and made a part of the record and this Order for enforcement purposes only.

Civ 2 (7/95) 41.1(b)

KATE BARKMAN, Clerk of Court
By: _/ss/ Carlene L. Kohut_________ Carlene L. Kohut, Deputy Clerk Judge Henry S. Perkin

 
 Case: 5:14-cv-4822 As of: 11/03/2017 02:08 PM EDT 1 of 11
CLOSED,A/R,STANDARD
United States District Court Eastern District of Pennsylvania (Allentown) CIVIL DOCKET FOR CASE #: 5:14−cv−04822−JFL

BLATT v. CABELA'S RETAIL, INC. Assigned to: HONORABLE JOSEPH F. LEESON, JR Demand: $150,000 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 08/15/2014 Date Terminated: 09/18/2017 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Employment Jurisdiction: Federal Question

KATE LYNN BLATT

represented by SIDNEY L. GOLD SIDNEY L. GOLD & ASSOCIATES, PC ELEVEN PENN CTR SUITE 515 1835 MARKET ST PHILADELPHIA, PA 19103 215−569−1999 Fax: 215−569−3870 Email: sgold@discrimlaw.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

BRIAN FARRELL Console Mattiacci Law, LLC 1525 Locust Street, 9th Floor PHILADELPHIA, PA 19102 215−545−7676 Email: farrell@consolelaw.com TERMINATED: 02/28/2017

KEVIN BARRY QUINNIPIAC UNIV SCH OF LAW CIV JUSTICE CLINIC 275 MT CARMEL AVE HAMDEN, CT 06518 203−582−3238 Email: legalclinic@quinnipiac.edu ATTORNEY TO BE NOTICED

NEELIMA VANGURI SIDNEY GOLD & ASSOCIATES 1835 MARKET STREET SUITE 515 PHILADELPHIA, PA 19103 215−569−1999 Email: nvanguri@discrimlaw.net ATTORNEY TO BE NOTICED

V. Defendant CABELA'S RETAIL, INC.

represented by MICHAEL AVILA FISHER & PHILLIPS LLP 150 N. RADNOR CHESTER ROAD SUITE C300 RADNOR, PA 19087 610−230−2179 Fax: 610−230−2151 Email: mavila@laborlawyers.com LEAD ATTORNEY

Case: 5:14-cv-4822 As of: 11/03/2017 02:08 PM EDT 2 of 11
ATTORNEY TO BE NOTICED
SUSAN M. GUERETTE FISHER & PHILLIPS LLP 150 N. Radnor Chester Road Suite C−300 RADNOR, PA 19087 610−230−2150 Fax: 610−250−2151 Email: sguerette@laborlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHRISTIN KIM U.S. Postal Service Eastern Area Law Office 3190 South 70th Street Philadelphia, PA 19153 215−351−3824 Fax: 215−351−3851 Email: christin.kim@usps.gov TERMINATED: 08/14/2015

V. Respondent UNITED STATES OF AMERICA

represented by EMILY BROOKE NESTLER U.S. DEPT OF JUSTICE CIVIL DIV FED PROGRAMS BRANCH 20 MASSACHUSETTS AVE NW WASHINGTON, DC 20539 202−616−8489 Email: emily.b.nestler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/15/2014 08/15/2014 08/15/2014 08/18/2014 09/10/2014
09/19/2014
09/19/2014 09/24/2014

# Docket Text
1 COMPLAINT against CABELA'S RETAIL, INC. ( Filing fee $ 400 receipt number 106186.), filed by KATE LYNN BLATT.(mima, ) (Entered: 08/18/2014)
DEMAND for Trial by Jury by KATE LYNN BLATT. (mima, ) (Entered: 08/18/2014)
Summons Issued as to CABELA'S RETAIL, INC.. One Forwarded To: Counsel on August 18, 2014 (mima, ) (Entered: 08/18/2014)
2 NOTICE of Appearance by NEELIMA VANGURI on behalf of KATE LYNN BLATT (VANGURI, NEELIMA) (Entered: 08/18/2014)
3 SUMMONS Returned Executed by KATE LYNN BLATT re: KEVIN CHASE served Summons and Complaint upon CABELA'S RETAIL, INC. by person. CABELA'S RETAIL, INC. served on 9/1/2014, answer due 9/22/2014. (uh, ) (Entered: 09/10/2014)
4 NOTICE of Appearance by SUSAN M. GUERETTE on behalf of CABELA'S RETAIL, INC. with Certificate of Service(GUERETTE, SUSAN) (Entered: 09/19/2014)
5 NOTICE of Appearance by CHRISTIN CHOI on behalf of CABELA'S RETAIL, INC. with Certificate of Service(CHOI, CHRISTIN) (Entered: 09/19/2014)
6 STIPULATION AND ORDER OF EXTENSION OF TIME THAT IT IS HEREBY STIPULATED AND AGREED BETWEEN DEFENDANT CABELA'S RETAIL, INC. ("DEFENDANT") AND PLAINTIFF KATE LYNN BLATT, THROUGH

Case: 5:14-cv-4822 As of: 11/03/2017 02:08 PM EDT 3 of 11

10/22/2014
10/29/2014 11/05/2014 11/07/2014
11/12/2014
11/17/2014 11/18/2014 11/26/2014 12/02/2014

THEIR DULY AUTHORIZED COUNSEL AND PURSUANT TO LOCAL RULE 7.4(B), THAT DEFENDANT SHALL HAVE AN EXTENSION OF TIME THROUGH WEDNESDAY, OCTOBER 22, 2014 TO ANSWER, MOVE, OR OTHERWISE PLEAD IN RESPONSE TO KATE LYNN BLATT'S COMPLAINT. THIS IS THE FIRST STIPULATION OF EXTENSION OF TIME; NO PRIOR EXTENSION HAS BEEN GRANTED; AND THE EXTENSION IS FOR A PERIOD NOT EXCEEDING THIRTY (30) DAYS. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 9/22/14. 9/24/14 ENTERED AND COPIES E−MAILED. (mas,) (Entered: 09/24/2014)
7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Partial) filed by CABELA'S RETAIL, INC..Memorandum of Law and Certificate of Service. (Attachments: # 1 Memorandum of Law in Support of the Partial Motion of Defendant Cabela's Retail, Inc. to Dismiss Plaintiff's Complaint, # 2 Exhibit A to Memorandum of Law in Support of the Partial Motion of Defendant Cabela's Retail, Inc. to Dismiss Plaintiff's Complaint, # 3 Exhibit B to Memorandum of Law in Support of the Partial Motion of Defendant Cabela's Retail, Inc. to Dismiss Plaintiff's Complaint, # 4 Proposed Order, # 5 Certificate of Service)(CHOI, CHRISTIN) (Entered: 10/22/2014)
8 Disclosure Statement Form pursuant to FRCP 7.1 including Cabela's Incorporated with Certificate of Service by CABELA'S RETAIL, INC..(CHOI, CHRISTIN) (Entered: 10/29/2014)
9 First Amended Complaint against CABELA'S RETAIL, INC. filed by KATE LYNN BLATT with Jury Demand, Certificate of Service.(mbh, ) (Entered: 11/05/2014)
10 ORDER THAT A PRETRIAL CONFERENCE (RULE 16) SHALL BE HELD ON MONDAY, DECEMBER 22, 2014 AT 2:00 P.M., IN THE CHAMBERS OF JUDGE JEFFREY L. SCHMEHL, ROOM 401, THE MADISON BUILDING, 400 WASHINGTON STREET, READING, BERKS COUNTY, PENNSYLVANIA. IT IS FURTHER ORDERED AS FOLLOWS: THE PARTIES SHALL MAKE THE REQUIRED INITIAL DISCLOSURES UNDER FED. R.CIV. P. 26(A) WITHIN 20 DAYS OF THE DATE OF THIS ORDER; THE PARTIES SHALL COMMENCE DISCOVERY IMMEDIATELY; AFTER CONSULTATION WITH COUNSEL FOR ALL PARTIES, COUNSEL SHALL COMPLETE AND SUBMIT THE REQUIRED JOINT STATUS REPORT PURSUANT TO RULE 26 (F); COUNSEL SHALL FOLLOW JUDGE SCHMEHLS POLICIES AND PROCEDURES WHICH CAN BE FOUND AT WWW.PAED.USCOURTS.GOV. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 11/6/14. 11/7/14 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 11/07/2014)
11 ORDER THAT UPON CONSIDERATION OF THE PARTIAL MOTION OF DEFENDANT CABELA'S RETAIL, INC. TO DISMISS PLAINTIFF'S COMPLAINT (THE "MOTION"), MEMORANDUM OF LAW IN SUPPORT OF THE PRETRIAL MOTION OF DEFENDANT CABELA'S RETAIL, INC. TO DISMISS PLAINTIFF'S COMPLAINT, AND ANY RESPONSES THERETO IS DENIED AS MOOT. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 11/12/2014.11/12/2014 ENTERED AND COPIES E−MAILED.(jmg, ) (Entered: 11/12/2014)
12 NOTICE of Appearance by BRIAN FARRELL on behalf of KATE LYNN BLATT with Certificate of Service(FARRELL, BRIAN) (Entered: 11/17/2014)
13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Partial) filed by CABELA'S RETAIL, INC..Memorandum, Certificate of Service. (Attachments: # 1 Memorandum of Law in Support of the Partial Motion of Defendant Cabela's Retail, Inc. to Dismiss Plaintiff's First Amended Complaint, # 2 Text of Proposed Order, # 3 Certificate of Service)(CHOI, CHRISTIN) (Entered: 11/18/2014)
14 MOTION for Leave to File Excess Pages and Extend Deadline for Plaintiff to Respond to Defendant's Partial Motion to Dismiss filed by KATE LYNN BLATT.Certificate of Service.(VANGURI, NEELIMA) (Entered: 11/26/2014)
15 ORDER THAT PLAINTIFF'S UNOPPOSED MOTION FOR EXTENSION OF DEADLINE AND OF THE PAGE LIMIT, SAID MOTION IS HEREBY GRANTED AND PLAINTIFF IS PERMITTED TO FILE A BRIEF NOT TO EXCEED 45 PAGES, AND THE PLAINTIFF HAS AN EXTENSION OF TIME UNTIL

Case: 5:14-cv-4822 As of: 11/03/2017 02:08 PM EDT 4 of 11

12/12/2014 12/15/2014
12/23/2014
12/23/2014 12/29/2014 12/30/2014
12/31/2014 01/20/2015 01/22/2015 01/22/2015
01/23/2015 02/04/2015 02/10/2015

MONDAY JANUARY 5, 2015, TO FILE A RESPONSE TO DEFENDANT'S PARTIAL MOTION TO DJSMISS. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 12/1/14. 12/2/14 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 12/02/2014)
16 MOTION for Admission Pro Hac Vice of Kevin Barry, Esquire filed by KATE LYNN BLATT.Affidavit, Certificate of Service.(GOLD, SIDNEY) (FEE PAID PPE112863, $40.00) Modified on 12/12/2014 (ems). (Entered: 12/12/2014)
17 ORDER THAT THE 16 APPLICATION OF KEVIN BARRY, ESQUIRE, TO PRACTICE IN THIS COURT PURSUANT TO LOCAL RULE OF CIVIL PROCEDURE 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 12/12/14. 12/16/14 ENTERED AND COPIES MAILED TO ATTORNEY, E−MAILED. (mas, ) (Entered: 12/16/2014)
18 SCHEDULING ORDER: ALL INITIAL DISCOVERY, AS DEFINED DURING THE CONFERENCE, SHALL BE COMPLETED BY 2/27/2015. A STATUS CONFERENCE SHALL BE HELD ON 3/9/2015 AT 1:30 P.M. AT THE UNITED STATES COURTHOUSE, 601 MARKET STREET, PHILADELPHIA, PA. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 12/23/2014. 12/23/2014 ENTERED AND COPIES MAILED AND E−MAILED. (ems) (Entered: 12/23/2014)
21 Minute Entry for proceedings held before HONORABLE JEFFREY L. SCHMEHL re: A Rule 16 Conference was held on 12/22/14. (ky, ) (Entered: 12/31/2014)
19 Consent MOTION for Extension of Time to File Response/Reply as to 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Partial) filed by KATE LYNN BLATT.Certificate of Service.(VANGURI, NEELIMA) (Entered: 12/29/2014)
20 ORDER THAT SAID 19 MOTION IS GRANTED; AND PLAINTIFF HAS UNTIL TUESDAY, JANUARY 20, 2015 TO FILE A RESPONSE. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 12/29/14. 12/30/14 ENTERED AND COPIES MAILED TO PRO HAC ATTORNEY, E−MAILED. (mas, ) (Entered: 12/30/2014)
22 Minute Entry for proceedings held before HONORABLE JEFFREY L. SCHMEHL Rule 16 Conference held on 12/22/2014 (lbs, ) (FILED IN ERROR; DUPLICATE ENTRY) Modified on 1/6/2015 (md). (Entered: 12/31/2014)
23 RESPONSE in Opposition re 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Partial) filed by KATE LYNN BLATT. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(FARRELL, BRIAN) (Entered: 01/20/2015)
24 NOTICE by KATE LYNN BLATT (Attachments: # 1 Exhibit, # 2 Certificate of Service)(FARRELL, BRIAN) (Entered: 01/22/2015)
25 MOTION for Extension of Time to File Response/Reply as to 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Partial), 23 Response in Opposition to Motion , MOTION for Leave to File Excess Pages (Unopposed) filed by CABELA'S RETAIL, INC..Certificate of Counsel and Certificate of Service. (Attachments: # 1 Exhibit A − Stipulation of Extension of Time, # 2 Certificate of Counsel, # 3 Proposed Order, # 4 Certificate of Service)(KIM, CHRISTIN) (Entered: 01/22/2015)
26 MOTION for Leave to File filed by KATE LYNN BLATT.Motion. (Attachments: # 1 Exhibit Brief of Proposed Amici Curiae in Opposition to Defendant's Partial Motion to Dismiss, # 2 Exhibit Appendix to Brief of Proposed Amici Curiae)(BARRY, KEVIN) (Entered: 01/23/2015)
27 RESPONSE to Motion re 26 MOTION for Leave to File Statement of Non−Opposition to Motion of Proposed Amicus Curiae for Leave to File Brief Amicus Curiae and for Permission to Exceed Page Limit filed by CABELA'S RETAIL, INC.. (Attachments: # 1 Certificate of Service)(KIM, CHRISTIN) (Entered: 02/04/2015)
28 ORDER THAT THE ABOVE−CAPTIONED CASE IS REASSIGNED FROM THE CALENDAR OF THE HONORABLE JEFFREY L. SCHMEHL TO THE CALENDAR OF THE HONORABLE JOSEPH F. LEESON, JR FOR ALL

Case: 5:14-cv-4822 As of: 11/03/2017 02:08 PM EDT 5 of 11

02/11/2015 02/17/2015 02/23/2015
02/23/2015
02/23/2015 02/27/2015 03/10/2015 03/20/2015 03/26/2015 03/26/2015

FURTHER PROCEEDINGS. SIGNED BY MICHAEL E. KUNZ, CLERK OF COURT ON 2/9/2015. 2/10/2015 ENTERED AND COPIES E−MAILED. (ems) (Entered: 02/10/2015)
29 ORDER THAT THE STATUS CONFERENCE SCHEDULED FOR MONDAY, MARCH 9, 2015 IS CANCELLED. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 2/11/15. 2/12/15 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 02/12/2015)
30 REPLY to Response to Motion re 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Partial) filed by CABELA'S RETAIL, INC.. (Attachments: # 1 Certificate of Service)(KIM, CHRISTIN) (Entered: 02/17/2015)
31 ORDER THAT THE MOTION OF DEFENDANT CABELAS RETAIL, INC. FOR AN EXTENSION OF DEADLINE TO FILE REPLY AND TO EXCEED THE PAGE LIMIT, (DOC. 25), SEEKING AN EXTENSION OF TIME UNTIL TUESDAY, FEBRUARY 17, 2015 TO FILE A REPLY IN FURTHER SUPPORT OF THE PARTIAL MOTION OF DEFENDANT CABELAS RETAIL, INC. TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT AND REQUESTING PERMISSION TO EXCEED THE PAGE LIMIT IS GRANTED. THE REPLY BRIEF FILED ON FEBRUARY 17, 2015, (DOC. 30), IS ACCEPTED AS TIMELY AND PROPERLY FILED. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 2/20/15.2/23/15 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 02/23/2015)
32 ORDER THAT MOTION OF PROPOSED AMICI CURIAE FOR LEAVE TO FILE AMICUS CURIAE IN OPPOSITION TO DEFENDANT' S PARTIAL MOTION TO DISMISS AND FOR PERMISSION TO EXCEED PAGE LIMIT, (DOC. 26), TO WHICH THE PROPOSED BRIEF IS ATTACHED, AND OF DEFENDANT CABELAS RETAIL, INC.S STATEMENT OF NON−OPPOSITION TO THE MOTION, (DOC. 27), IS GRANTED. THE CLERK OF COURT SHALL DOCKET THE ATTACHMENTS TO THE MOTION, SEE (DOC. 26), AS THE AMICI CURIAE BRIEF. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 2/20/15.2/23/15 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 02/23/2015)
33 BRIEF OF AMICI CURIAE GAY & LESBIAN ADVOCATES & DEFENDERS, MAZZONI CENTER, NATIONAL CENTER FOR LESBIAN RIGHTS, NATIONAL CENTER FOR TRANSGENDER EQUALITY, NATIONAL LGBTQ TASK FORCE, AND TRANSGENDER LAW CENTER IN OPPOSITION TO DEFENDANT'S PARTIAL MOTION TO DISMISS filed by KATE LYNN BLATT. (Attachments: # 1 APPENDIX)(er, ) (Entered: 02/23/2015)
34 NOTICE of STATUS CONFERENCE: A STATUS CONFERENCE HAS BEEN SCHEDULED FOR WEDNESDAY, APRIL 8, 2015, AT 9:00 AM BEFORE THE HONORABLE JOSEPH F. LEESON, JR. AT THE EDWARD N. CAHN COURTHOUSE AND FEDERAL BUILDING, COURTROOM C, THIRD FLOOR, 504 WEST HAMILTON STREET, ALLENTOWN, PENNSYLVANIA.(dja, ) (Entered: 02/27/2015)
35 ORDER THAT THE REQUESTED EXTENSION OF THE DISCOVERY DEADLINE TO APRIL 13, 2015 IS DENIED. THE COURT GRANTS AN EXTENSION OF THE DISCOVERY DEADLINE UNTIL APRIL 8, 2015. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 3/9/15. 3/10/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 03/10/2015)
36 NOTICE by UNITED STATES OF AMERICA re 24 Notice (Other) Acknowledgment of Constitutional Challenge and Request for Extension of Time (Attachments: # 1 Text of Proposed Order)(NESTLER, EMILY) (Entered: 03/20/2015)
37 ORDER THIS COURT CERTIFIES TO THE UNITED STATES ATTORNEY GENERAL THAT PLAINTIFF KATE LYNN BLATT HAS DRAWN INTO QUESTION THE CONSTITUTIONALITY OF 42 U.S.C. § 12211(B)(1) OF THE AMERICANS WITH DISABILITIES ACT, 42 U.S.C. §§ 12101, ET SEQ. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 3/26/15. 3/26/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 03/26/2015)
38 ORDER THE UNITED STATES REQUEST FOR AN EXTENSION OF THE DEADLINE FOR ITS INTERVENTION IS GRANTED. THE UNITED STATES

Case: 5:14-cv-4822 As of: 11/03/2017 02:08 PM EDT 6 of 11

04/08/2015 04/08/2015
04/09/2015 04/09/2015 04/10/2015
04/10/2015 05/07/2015 05/15/2015 05/15/2015 05/26/2015

DEADLINE IS EXTENDED UP TO AND INCLUDING MAY 22, 2015.. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 3/26/15. 3/26/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 03/26/2015)
39 Minute Entry for proceedings held before HONORABLE JOSEPH F. LEESON, JR re: A Status Conference was held on 4/8/15. (ky, ) (Entered: 04/08/2015)
40 ORDER THAT THE WITHIN MATTER IS REFERRED TO UNITED STATES MAGISTRATE JUDGE HENRY S. PERKIN TO SCHEDULE AND CONDUCT A SETTLEMENT CONFERENCE ON OR AFTER MAY 22, 2015. IN THE EVENT ANY DEFENDANT HAS NOT YET ENTERED AN APPEARANCE AT THE TIME OF THIS ORDER, PLAINTIFF SHALL SERVE A COPY OF THIS ORDER UPON THAT DEFENDANT. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 4/8/15. 4/9/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 04/09/2015)
41 TELEPHONIC SETTLEMENT/STATUS CONFERENCE SCHEDULING ORDER THAT A TELEPHONIC SETTLEMENT/STATUS CONFERENCE SET FOR 5/7/2015 11:30 AM BEFORE MAGISTRATE JUDGE HENRY S. PERKIN; ETC. AS HEREIN. SIGNED BY MAGISTRATE JUDGE HENRY S. PERKIN ON 4/9/15. 4/10/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 04/10/2015)
42 SETTLEMENT CONFERENCE SCHEDULING ORDER THAT AN IN PERSON SETTLEMENT CONFERENCE SET FOR 8/12/2015 09:30 AM BEFORE MAGISTRATE JUDGE HENRY S. PERKIN; ETC. AS HERIEN. SIGNED BY MAGISTRATE JUDGE HENRY S. PERKIN ON 4/9/15. 4/10/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 04/10/2015)
43 ORDER ALL DISCOVERY SHALL PROCEED FORTHWITH AND CONTINUE IN SUCH MANNER AS WILL ASSURE THAT ALL REQUESTS FOR AND RESPONSES TO DISCOVERY WILL BE SERVED, NOTICED AND COMPLETED BY MAY 22, 2015, ETC. A STATUS CONFERENCE BEFORE JUDGE JOSEPH F. LEESON, JR. WILL BE HELD AT THE EDWARD N. CAHN COURTHOUSE AND FEDERAL BUILDING, COURTROOM C, THIRD FLOOR, 504 WEST HAMILTON STREET, ALLENTOWN, PENNSYLVANIA 18101 ON MAY 27, 2015 AT 10:00 A.M. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 4/10/15. 4/10/15 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 04/10/2015)
Set/Reset Scheduling Order Deadlines: STATUS CONFERENCE SET FOR 5/27/2015 10:00 AM IN Allentown BEFORE HONORABLE JOSEPH F. LEESON JR.. DISCOVERY DUE BY 5/22/2015. (er, ) (Entered: 04/10/2015)
44 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN. Settlement Conference held on 5/7/15. A telephonic settlement conference was conducted in this case. (mas, ) (Entered: 05/08/2015)
45 REQUEST for Extension of Time to File Regarding Intervention filed by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order)(NESTLER, EMILY) Modified on 5/18/2015 (md). (Entered: 05/15/2015)
46 ORDER THAT THE UNITED STATES' REQUEST FOR A SECOND EXTENSION OF THE DEADLINE FOR ITS INTERVENTION IS GRANTED. THE UNITED STATES' DEADLINE IS EXTENDED UP TO AND INCLUDING JULY 21, 2015. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 5/15/15. 5/15/15 ENTERED AND COPIES E−MAILED.(ky, ) (Entered: 05/15/2015)
47 ORDER THAT THE STATUS CONFERENCE IN THE ABOVE−CAPTIONED CASE CURRENTLY SCHEDULED FOR WEDNESDAY, MAY 27, 2015, AT 10:00 A.M. BEFORE JUDGE JOSEPH F. LEESON, JR. HAS BEEN RESCHEDULED FOR WEDNESDAY, JULY 22, 2015, AT 3:30 P.M. THE CONFERENCE WILL BE HELD AT THE EDWARD N. CAHN COURTHOUSE AND FEDERAL BUILDING, COURTROOM C, 504 HAMILTON STREET, SUITE 3401, ALLENTOWN, PENNSYLVANIA 18101. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 5/19/15. 5/26/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 05/26/2015)

Case: 5:14-cv-4822 As of: 11/03/2017 02:08 PM EDT 7 of 11

07/02/2015 07/02/2015
07/21/2015 07/28/2015
07/31/2015
07/31/2015 08/11/2015 08/12/2015 08/12/2015
08/13/2015 08/14/2015 08/21/2015 08/21/2015

48 NOTICE of Appearance by MICHAEL AVILA on behalf of CABELA'S RETAIL, INC. with Certificate of Service(AVILA, MICHAEL) (Entered: 07/02/2015)
49 STIPULATION AND ORDER THE PARTIES HAVE COMPLETED FEET DISCOVERY IN THIS CASE. THE PARTIAL MOTION OF CABELA'S RETAIL, INC. TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT ("PARTIAL MOTION TO DISMISS''), FILED ON NOVEMBER IS, 2014, IS CURRENTLY PENDING; ETC. AS HEREIN. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 7/2/15. 7/6/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 07/06/2015)
50 Statement of Interest by UNITED STATES OF AMERICA. (NESTLER, EMILY) (Entered: 07/21/2015)
51 ORDER THAT PLAINTIFF AND DEFENDANT SHALL FILE BRIEFS IN RESPONSE TO THE UNITED STATES STATEMENT OF INTEREST ON OR BEFORE AUGUST 14, 2015. THE BRIEFS SHOULD DISCUSS: WHETHER THE CONSTITUTIONAL AVOIDANCE DOCTRINE IS APPLICABLE OR NOT APPLICABLE; AND IF THE CONSTITUTIONAL AVOIDANCE DOCTRINE IS APPLICABLE, WHAT THE PROCEDURE SHOULD BE FOR FURTHER PRE−TRIAL AND TRIAL PROCEEDINGS IN THIS CASE. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 7/27/15. 7/29/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 07/29/2015)
52 STIPULATION AND ORDER THAT AND BETWEEN COUNSEL FOR THE PLAINTIFF, NEELIMA VANGURI, ESQUIRE AND COUNSEL FOR THE DEFENDANT, CHRISTIN KIM, ESQUIRE, THAT THE PLAINTIFF HAS AN EXTENSION OF TIME UNTIL FRIDAY, AUGUST 14, 2015 TO SUBMIT PLAINTIFF'S EXPERT REPORT; DEFENDANT HAS UNTIL SEPTEMBER 14, 2015 TO SUBMIT A RESPONSE; AND THE PARTIES HAVE UNTIL OCTOBER 14, 2015 TO COMPLETE EXPERT DEPOSITIONS. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 7/30/15. 7/31/15 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 07/31/2015)
Set/Reset Deadlines as to RESPONSES DUE BY 9/14/2015. (er, ) (Entered: 07/31/2015)
53 Joint MOTION for Extension of Time to File Response to Court Order dated July 28, 2015 filed by KATE LYNN BLATT.proposed order and certificate of service.(FARRELL, BRIAN) (Entered: 08/11/2015)
54 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKINre: An In Person Settlement Conference was held on 8/12/15. (ky, ) (Entered: 08/12/2015)
55 ORDER THAT THE PARTIES' JOINT MOTION FOR AN EXTENSION OF DEADLINE IS GRANTED, AND PLAINTIFF AND DEFENDANT HAVE AN EXTENSION OF TIME UNTIL 8/21/15 TO FILE A RESPONSE TO THE COURT'S ORDER DATED JULY 28, 2015 (DOC. NO. 51). SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 8/12/15. 8/12/15 ENTERED AND COPIES E−MAILED.(ky, ) (Entered: 08/12/2015)
56 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN: Settlement Conference held on 8/13/15. Court Reporter: None. (er, ) (Entered: 08/14/2015)
57 NOTICE of Withdrawal of Appearance by CHRISTIN KIM on behalf of CABELA'S RETAIL, INC.(KIM, CHRISTIN) (Entered: 08/14/2015)
58 Memorandum of Law in Response to Court Order Dated July 28, 2015 re 51 Order, Set Motion and R&R Deadlines/Hearings,, by KATE LYNN BLATT. (Attachments: # 1 Certificate of Service) (FARRELL, BRIAN) (Entered: 08/21/2015)
59 Memorandum of Law in Response to The Statement of Interest of the United States of America and Certificate of Service by CABELA'S RETAIL, INC.. (AVILA, MICHAEL) (Entered: 08/21/2015)

Case: 5:14-cv-4822 As of: 11/03/2017 02:08 PM EDT 8 of 11

08/24/2015 08/26/2015
09/21/2015
09/22/2015
10/02/2015 10/02/2015 11/10/2015
11/16/2015 11/17/2015

60 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN. Settlement Conference held on 8/24/15. A telephonic settlement conference wsa conducted in this case. (mas, ) (Entered: 08/24/2015)
61 STIPULATION TO EXTEND TIME FOR EXPERT DISCOVERY AND ORDER IT IS HEREBY STIPULATED AND AGREED BY AND BETWEEN PLAINTIFF KATE LYNN BLATT AND DEFENDANT CABELA'S RETAIL, INC., THROUGH THEIR UNDERSIGNED COUNSEL, THAT WITH THE COURT'S APPROVAL: (I) DEFENDANT SHALL HAVE AN EXTENSION OF TIME UNTIL OCTOBER 14, 2015 TO PRODUCE ITS EXPERT REPORT; AND (II) THE PARTIES SHALL HAVE UNTIL NOVEMBER 16, 2015 TO COMPLETE EXPERT DISCOVERY. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 8/26/15. 8/27/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 08/27/2015)
62 ORDER THAT THE UNITED STATES SHALL INTERVENE OR FILE A SUPPLEMENTAL STATEMENT OF INTEREST ON OR BEFORE NOVEMBER 16, 2015; PLAINTIFF AND DEFENDANT SHALL FILE SUPPLEMENTAL BRIEFS WITHIN FOURTEEN DAYS OF THE FILING OF THE UNITED STATES SUPPLEMENTAL STATEMENT OF INTEREST; ALL BRIEFS SHALL ADDRESS THE CONSTITUTIONALITY OF 42 U.S.C. § 12211(B) AND THE SUGGESTION MADE IN THE AMICUS BRIEF THAT SECTION 12211(B) DOES NOT EXCLUDE GENDER DYSPHORIA, SEE ECF NO. 33, PP. 11−17; AND ORAL ARGUMENT IS SCHEDULED ON THE MOTION TO DISMISS BEFORE JUDGE JOSEPH F. LEESON, JR. FOR DECEMBER 10, 2015, AT 2:00 P.M. AT THE EDWARD N. CAHN COURTHOUSE AND FEDERAL BUILDING, COURTROOM C, 504 HAMILTON STREET, SUITE 3401, ALLENTOWN, PENNSYLVANIA 18101. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 9/21/15. 9/22/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 09/22/2015)
63 ORDER THE CLERK OF COURT SHALL TRANSFER THE ABOVE−CAPTIONED ACTION TO THE CIVIL SUSPENSE DOCKET, AND MARK THE CASE CLOSED FOR STATISTICAL PURPOSES; THE COURT SHALL RETAIN JURISDICTION OVER THE CASE AND SHALL RETURN IT TO THE COURTS ACTIVE DOCKET ONCE THE CASE IS READY TO PROCEED TO FINAL DISPOSITION; THE ENTRY OF THIS ORDER IS WITHOUT PREJUDICE TO THE RIGHTS OF THE PARTIES; AND THE DEADLINES SET FORTH IN THE ORDER DATED SEPTEMBER 21, 2015, SEE ECF NO. 62 , REMAIN IN EFFECT. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 9/22/15. 9/23/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 09/23/2015)
64 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN: a Telephonic Settlement Conference held on 10/1/15. Court Reporter: none. (er, ) (Entered: 10/02/2015)
65 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN: a Telephonic Settlement Conference held on 10/2/15. Court Reporter: None. (er, ) (Entered: 10/05/2015)
66 STIPULATION AND ORDER THAT BY AND BETWEEN COUNSEL FOR THE PLAINTIFF, NEELIMA VANGURI, ESQUIRE AND COUNSEL FOR THE DEFENDANT, MICHAEL P. AVILA, ESQUIRE, THAT THE PLAINTIFF HAS AN EXTENSION OF TIME UNTIL WEDNESDAY, DECEMBER 9, 2015 TO SUBMIT PLAINTIFFS REBUTTAL REPORT TO DEFENDANT'S EXPERT REPORT; AND THE PARTIES HAVE UNTIL FRIDAY, JANUARY 22, 2016 TO COMPLETE EXPERT DEPOSITIONS. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 11/9/15. 11/10/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 11/10/2015)
67 Statement of Interest by UNITED STATES OF AMERICA. (NESTLER, EMILY) (Entered: 11/16/2015)
68 ORDER THAT THE CLERK OF COURT SHALL TRANSFER THE ABOVE−CAPTIONED ACTION TO THE REGULAR TRIAL LIST, OUT OF THE CIVIL SUSPENSE DOCKET, AND REOPEN THE CASE; AND THE PARTIES ARE DIRECTED TO REFER TO THIS COURTS ORDER DATED SEPTEMBER 21, 2015, ECF NO. 62 , FOR FURTHER DIRECTION. SIGNED BY HONORABLE

Case: 5:14-cv-4822 As of: 11/03/2017 02:08 PM EDT 9 of 11

11/24/2015
11/25/2015 11/30/2015 12/01/2015 12/01/2015
12/10/2015 01/11/2016
03/01/2016 02/28/2017 03/01/2017 03/02/2017
03/27/2017

JOSEPH F. LEESON, JR ON 11/17/15. 11/18/15 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 11/18/2015)
69 MOTION for Leave to File filed by KATE LYNN BLATT.UNOPPOSED MOTION OF AMICI CURIAE GAY & LESBIAN ADVOCATES & DEFENDERS, MAZZONI CENTER, NATIONAL CENTER FOR LESBIAN RIGHTS, NATIONAL CENTER FOR TRANSGENDER EQUALITY, NATIONAL LGBTQ TASK FORCE, AND TRANSGENDER LAW CENTER FOR LEAVE TO PARTICIPATE AT ORAL ARGUMENT ON DECEMBER 10,2015 AND TO FILE SUPPLEMENTAL AMICUS BRIEF IN RESPONSE TO SECOND STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA.(BARRY, KEVIN) (Entered: 11/24/2015)
70 ORDER THAT THE MOTION FOR LEAVE (69) IS GRANTED AND AND ANY SUPPLEMENTAL AMICUS BRIEF SHALL BE FILED ON OR BEFORE DECEMBER 1, 2015. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 11/24/15.11/25/15 ENTERED AND COPIES E−MAILED.(er, ) Modified on 11/25/2015 (er, ). (Entered: 11/25/2015)
71 Memorandum of Law in Response to the Second Statement of Interest of the United States of America by CABELA'S RETAIL, INC.. (AVILA, MICHAEL) (Entered: 11/30/2015)
72 Memorandum of Law in Response to this Court's Order Dated September 21, 2015 by KATE LYNN BLATT. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (FARRELL, BRIAN) (Entered: 12/01/2015)
73 STATEMENT OF AMICI CURIAE GAY & LESBIAN ADVOCATES & DEFENDERS, MAZZONI CENTER, NATIONAL CENTER FOR LESBIAN RIGHTS, NATIONAL CENTER FOR TRANSGENDER EQUALITY, NATIONAL LGBTQ TASK FORCE, AND TRANSGENDER LAW CENTER IN RESPONSE TO SECOND STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA by KATE LYNN BLATT. (BARRY, KEVIN) Modified on 12/2/2015 (md). (Entered: 12/01/2015)
74 Minute Entry for proceedings held before HONORABLE JOSEPH F. LEESON, JR: Oral Argument held on 12/9/15. Court Reporter: ESR. (er, ) (Entered: 12/11/2015)
75 STIPULATION AND ORDER THAT IT IS HEREBY STIPULATED AND AGREED BY AND BETWEEN PLAINTIFF KATE LYNN BLATT AND DEFENDANT CABELA'S RETAIL, INC., THROUGH THEIR UNDERSIGNED COUNSEL, THAT WITH THE COURT'S APPROVAL, THE PARTIES SHALL HAVE UNTIL 45 DAYS FOLLOWING THE DOCKETING OF THE COURT'S ORDER CONCERNING THE PARTIAL MOTION OF DEFENDANT CABELA'S RETAIL, INC. TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (ECF NO. 13 ) TO COMPLETE EXPERT DEPOSITIONS. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 1/11/16. 1/11/16 ENTERED AND COPIES E−MAILED. (mas, ) (Entered: 01/11/2016)
76 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN. Settlement Conference held on 3/1/16. A telephonic settlement conference was conducted in this case. (mas, ) (Entered: 03/02/2016)
77 NOTICE of Withdrawal of Appearance by BRIAN FARRELL on behalf of KATE LYNN BLATT(FARRELL, BRIAN) (Entered: 02/28/2017)
78 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN: a Telephonic Settlement Conference held on 3/1/17. Court Reporter: None. (er, ) (Entered: 03/02/2017)
79 ORDER THAT A TELEPHONIC SETTLEMENT/STATUS CONFERENCE IN THE ABOVE−CAPTIONED CASE WILL BE HELD ON MONDAY, MARCH 27, 2017, AT 2:30 PM BEFORE THE HONORABLE HENRY S. PERKIN, UNITED STATES MAGISTRATE JUDGE, ETC. SIGNED BY MAGISTRATE JUDGE HENRY S. PERKIN ON 3/2/17. 3/2/17 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 03/02/2017)
80 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN. Settlement Conference held on 3/27/17. A telephonic settlement conference

Case: 5:14-cv-4822 As of: 11/03/2017 02:08 PM EDT 10 of 11

04/03/2017 05/18/2017 05/18/2017 05/24/2017 06/01/2017 06/13/2017
06/13/2017 06/16/2017 06/16/2017
07/28/2017
07/28/2017 08/01/2017 08/15/2017

was conducted in this case. (mas, ) (Entered: 03/28/2017)
81 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN. Settlement Conference held on 4/3/17. A telephonic settlement conference was conducted in this case. (mas, ) (Entered: 04/04/2017)
82 OPINION. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 5/18/17. 5/18/17 ENTERED AND COPIES E−MAILED.(mas, ) (Entered: 05/18/2017)
83 ORDER THAT THE MOTION, ECF. NO. 13 , IS DENIED. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 5/18/17. 5/18/17 ENTERED AND COPIES E−MAILED.(mas, ) (Entered: 05/18/2017)
84 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN: a Telephonic Settlement Conference held on 5/24/17. Court Reporter: None. (er, ) (Entered: 05/25/2017)
85 STIPULATION AND ORDER THAT THE DEADLINE TO COMPLETE EXPERT DEPOSITIONS IS EXTENDED BY SIXTY (60) DAYS OR UNTIL AUGUST 31, 2017. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 6/1/17. 6/1/17 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 06/01/2017)
86 NOTICE OF SCHEDULING OF TELEPHONE CONFERENCE: A TELEPHONE CONFERENCE HAS BEEN SCHEDULED WITH THE HONORABLE JOSEPH F. LEESON, JR. ON THURSDAY, JUNE 15, 2017, AT 2:30 P.M. CONCERNING THE STATUS OF THIS CASE. THE ATTORNEY FOR THE PLAINTIFF WILL INITIATE THE TELEPHONE CONFERENCE CALL BY CONTACTING JUDGE LEESON AT 610−391−7020, THROUGH HIS CIVIL DEPUTY CLERK, AFTER ALL PARTIES ARE CONFIRMED AS PRESENT ON THE CALL. (dja, ) (Entered: 06/13/2017)
87 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN. Settlement Conference held on 6/13/17. A telephonic settlement conference was conducted in this case. (mas, ) (Entered: 06/14/2017)
88 Minute Entry for proceedings held before HONORABLE JOSEPH F. LEESON, JR Telephone Conference held on 6/15/17. Court Reporter: None. (er, ) Modified on 6/19/2017 (md). (Entered: 06/16/2017)
89 ORDER THAT ALL DISPOSITIVE MOTIONS SHALL BE FILED NOT LATER THAN OCTOBER 2, 2017, ETC. A FINAL PRETRIAL CONFERENCE FOR THIS MATTER WILL BE HELD ON DECEMBER 20, 2017, AT 3:00 P.M., AT THE EDWARD N. CAHN U.S. COURTHOUSE AND FEDERAL BUILDING, COURTROOM C, THIRD FLOOR, 504 WEST HAMILTON STREET, ALLENTOWN, PENNSYLVANIA, ETC. THIS CASE IS SCHEDULED FOR TRIAL ON DECEMBER 26, 2017, OR AS SOON THEREAFTER AS THE SCHEDULE OF THE COURT PERMITS. COURT SHALL BE HELD FROM 9:00 A.M. TO 5:00 P.M., ETC. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 6/15/17. 6/16/17 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 06/16/2017)
90 STIPULATION AND ORDER THAT THE THE STIPULATION IS APPROVED AND GRANTED IN PART AND DISAPPROVED AND DENIED IN PART. DEFENDANT'S DEADLINE TO FILE AN ANSWER TO PLAINTIFF'S AMENDED COMPLAINT, ONLY, AND FOR NO OTHER PURPOSE, IS EXTENDED THROUGH AND INCLUDING AUGUST 2, 2017. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 7/27/17. 7/28/17 ENTERED AND COPIES E−MAILED.(er, ) (Additional attachment(s) added on 7/28/2017: # 1 stipulation) (er, ). (Entered: 07/28/2017)
91 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN: a Telephonic Settlement Conference held on 7/28/17. Court Reporter: None. (er, ) (Entered: 07/28/2017)
92 ANSWER to 9 Amended Complaint by CABELA'S RETAIL, INC.. (Attachments: # 1 Certificate of Service)(GUERETTE, SUSAN) (Entered: 08/01/2017)
93 STIPULATION AND ORDER THAT THE PROPOSED STIPULATION IS DENIED. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 8/15/17.

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(Attachments: # 1 stipulation) 8/16/17 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 08/16/2017)
94 Minute Entry for proceedings held before MAGISTRATE JUDGE HENRY S. PERKIN. Settlement Conference held on 9/13/17. A telephonic settlement conference was conducted in this case. (mas, ) (Entered: 09/14/2017)
95 ORDER DISMISSING ACTION WITH PREJUDICE PURSUANT TO LOCAL RULE 41.1(b), ETC. SIGNED BY MAGISTRATE JUDGE HENRY S. PERKIN ON 9/18/17. 9/18/17 ENTERED AND COPIES E−MAILED.(er, ) (Entered: 09/18/2017)