Gender Affirming "Care" by schoools (and/or HRT for transitioning) can violate the ADA
Gender Affirming "Care" by schoools (and/or HRT for transitioning) can violate the ADA
Absent intent or authority as legal advice. Presented as aid and encouragement under 42 USC 12203(b).
The Americans with Disabilities Act of 1990, the ADA Amendments Act of 2008, and Final Rule implementation, collectively “ADA” are available to every American.
28 C.F.R. §35.108 (c)(1)(ii) Major life activities include, but are not limited to:
(ii) The operation of a major bodily function, such as the functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. The operation of a major bodily function includes the operation of an individual organ within a body system.
Notice that endocrine (hormonal), and reproductive systems are included as major life activities.
The definition of disability in the ADA is “A physical or mental impairment that substantially limits one or more major life activities.”
One can have a disability, a record of a disability or be “regarded as” disabled.
The Presentation of “Gender Affirming Care” or Hormone Replacement Therapy (HRT) For Transitioning As a Disability.
As a Certified ADA Advocate, I would posit that “Gender Affirming Care” or HRT for transitioning, or even discussing gender/sex issues with kids by schools presents two distinct disabilities. I’m including the subject of schools offering kids hormone or puberty blockers in this as well.
NOTE: See this article for a more complete draw-down of gender dysphoria as a disability:
First, it regards the child as having a deficient endocrine and/or reproductive system, and this is a “mental impairment that substantially limits these (normally functioning) major life activities. The presentation of gender ideology is that a child can choose to alter these systems, which is adverse to the ADA. It creates a “regarded as” disability.
The interesting thing about regarded as disabilities, is that the person invoking the ADA because they are being regarded as disabled, does NOT have to prove a disability. (28 CFR §35.108(a)(2)(iii)) Rather they show how they were regarded as, which I’ve just spelled out for you.
The second disability is that if the school or other construct actually offers the child hormone replacement therapy, or “gender affirming” care, which is telling a child that they can change their reproductive system, it actually creates a disability in that when the child acts upon this, it is also a physical and/or mental impairment that substantially limits, again, the two major life activities, depending on if hormone replacement and/or surgery, or children altering how their genitals or breasts present, such as “binding” “wrapping” or “tucking” or other terms for constricting their genitals or breasts.
The State Loses Immunity When the ADA Is Invoked.
Under 28 C.F.R. §35.178 and 42 U.S.C. 12202 remove state immunity concerning ADA claims in federal court. Tennesse v. Lane 541 U.S. 509 is a supreme court case that affirms that this state sovereign immunity is rightfully removed concerning ADA claims.
This means that the State that normally enjoys immunity against suit, is without immunity concerning their duties to comply with the ADA.
This matter as an ADA claim is ripe to be presented to schools as discrimination, and also denial of equal access for kids that have absolutely nothing wrong with their endocrine or reproductive systems.
The final thought I will put in here is that the schools use the prohibited acts of coercion (through peer pressure) and intimidation, and interference, all of which are prohibited under 42 USC 12203(b).
If you want more information, you can reach me on twitter at certified_ada or on Telegram at t.me/ADARights.
P.D., JAY V SHORE.
