QUEER ACCOMMODATIONS
RYAN H. NELSON*
ABSTRACT
Ever since the American Psychological Association’s publication of the fifth edi-
tion of its Diagnostic and Statistical Manual (DSM-5) in 2013, wherein it embraced
a diagnosis of gender dysphoria in lieu of gender identity disorder, a doctrinal
debate has been reignited in the courts: can gender dysphoria be a “disability” or
a “handicap” under accommodations mandate statutes like the Americans with
Disabilities Act of 1990, the Rehabilitation Act of 1973, or their state and munici-
pal analogs? Yet, understandably, this debate has focused on whether gender dys-
phoria fits under the umbrella of these legal terms of art, not the incredible variety
of work accommodations that queer identities necessitate. This article seeks to
explore that terrain by explaining the sorts of accommodations needed not only by
workers with gender dysphoria, but by queer workers writ large.
It begins by briefly recounting the development of the debate over gender
dysphoria as a “disability,” pre- and post-DSM-5. It then focuses on cataloging
queer accommodations, both real and theorized, and justifying why they are
crucial to LGBTQþ
1
workers. In doing so, it tells untold stories of queer work-
ers and why their identities may require accommodations like being referred to
by their chosen names, pronouns, and honorifics; using or eschewing gendered
language; alterations to certain dress and grooming standards; access to bath-
rooms and other traditionally sex-segregated spaces; modifications to their job
functions and physical workspaces; flexible work arrangements and leaves of ab-
sence; and changes to employee benefit plans and personnel policies. It concludes
by reflecting on the breadth and depth of queer accommodations, predominantly
by highlighting how queer accommodations further underscore the urgency of an
equitable, universal accommodations mandate in work law.
INTRODUCTION .............................................. 24
I. TRANSFORMING DOCTRINE .................................. 27
A. STAGNATION AND TREPIDATION........................... 28
* Ryan H. Nelson is an Associate Professor of Law at South Texas College of Law Houston. He
would like to thank Richard R. Carlson, Louis Cholden-Brown, D Dangaran, Alaina Daniels, Doron
Dorfman, Katie Eyer, Michael Z. Green, M. Dru Levasseur, Nicole Buonocore Porter, D’Andra Millsap
Shu, Deborah Widiss, and all the participants at the 2024 All About Accommodations Symposium at the
Chicago-Kent College of Law Martin H. Malin Institute for Law & the Workplace and the 2024
Southeastern Association of Law Schools Conference for their insightful feedback. © 2024, Ryan
H. Nelson.
1. In lieu of alternative acronyms, this author uses LGBTQþto encompass everyone under the queer
umbrella, see infra notes 103–104 & accompanying text, in an effort to embrace a persistent moniker
that endures even as our understanding of sexualities, romantic orientations, and gender identities
evolve.
23
B. TURNING THE TIDE ................................... 33
II. ACCOMMODATING QUEER WORKERS ........................... 39
A. NAMES, PRONOUNS, AND HONORIFICS, AND GENDERED LANGUAGE . . 40
B. DRESS AND GROOMING STANDARDS........................ 44
C. BATHROOMS AND OTHER TRADITIONALLY SEX-SEGREGATED SPACES . . 46
D. JOB FUNCTION AND PHYSICAL SPACE MODIFICATIONS ........... 48
E. FLEXIBLE WORK ARRANGEMENTS AND TIME OFF .............. 50
F. BENEFITS AND PERSONNEL POLICY COVERAGE ................ 51
CONCLUSION ............................................... 54
INTRODUCTION
Title I of the Americans with Disabilities Act of 1990 (“ADA”) and Sections 703
and 704 of the Rehabilitation Act of 1973 (“Rehab Act”) require certain employers
to make reasonable accommodations to qualified individuals with a “disability.”
2
Infamously, though, the ADA and the Rehab Act exclude from their definitions of
“disability” both “homosexuality and bisexuality,” as well as “transvestism, trans-
sexualism ..., gender identity disorders not resulting from physical impairments, or
other sexual behavior disorders.”
3
As a result, until at least 2013, the consensus in
the legal academy and on the ground in employment law firms was that workers
with, or regarded as having, gender identity disorder (“GID”) or its predecessor or
(2011); 41 C.F.R. § 60-741.21(a)(6) (2014). Some courts have held that Title II of the ADA and its
implementing regulations, 42 U.S.C. § 12132; 28 C.F.R. §§ 35.130(b)(7)(i), 35.140(a) (2016), require
the same for state and municipal government employers. Brumfield v. City of Chicago, 735 F.3d 619,
629–30 (7th Cir. 2013); McGary v. City of Portland, 386 F.3d 1259, 1266 n.3 (9th Cir. 2004) (“Although
Title II of the ADA uses the term ‘reasonable modification,’ rather than ‘reasonable accommodation,’
these terms create identical standards.”).
statutes exhibit against workers who express their gender identity by wearing clothing typically
associated with a sex other than their assigned sex—most of whom are transgender or gender
nonconforming—and workers with transvestic disorder, Congress excluded “transvest[ism]” from the
scope of “disability” under the ADA twice. 42 U.S.C. § 12208. Beating a dead horse shows animus
against horses. The administrative agencies responsible for promulgating the regulations implementing
the ADA and the Rehab Act—viz., the U.S. Department of Justice (“DOJ”), the U.S. Equal Employment
Opportunity Commission (“EEOC”), and the U.S. Department of Labor’s Office of Federal Contract
Compliance Programs (“OFCCP”)—also duplicated all of these statutory exclusions in their regulations
implementing those statutes. 28 C.F.R. § 35.108(b)(3), (g)(1) (DOJ’s ADA Title II regulations); 29 C.F.
R. § 1630.3(d)(1), (e) (EEOC’s ADA Title I regulations); 41 C.F.R. § 60-741.3(d), (e) (OFCCP’s Rehab
Act Section 503 regulations). However, per Hanlon’s Razor (i.e., “Never attribute to malice that which
is adequately explained by stupidity.”), such redundancies are much more likely evidence of the
widespread, inane agency practice of repeating statutory definitions in regulatory definitions, not the
animus of these agencies. For more information about transvestic disorder, see AM. PSYCH. ASS’N.,
DIAGNOSTIC & STAT. MANUAL 702–04 (Susan K. Schultz and Emily A. Kuhl eds., 5th ed. 2013)
[hereinafter “DSM-5”]. On the animus behind these statutory exclusions, see Kevin Barry & Jennifer
Levi, Blatt v. Cabela’s Retail, Inc. and A New Path for Transgender Rights, 127 YALE L. J. FORUM 373,
379–80 (2017).
24 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:23
related diagnoses,
4
not to mention all other queer workers, fell outside the protection
of these federal statutes’ accommodations mandates.
5
Then, in 2013, the American Psychological Association (“APA”) replaced
GID with gender dysphoria (“GD”)
6
to “further focus[] the diagnosis on the gen-
der identity-related distress that some transgender people experience (and for
which they may seek psychiatric, medical, and surgical treatments) rather than on
transgender individuals or identities themselves.”
7
Gender Dysphoria Diagnosis, AM. PSYCH. ASS’N., https://perma.cc/2N4W-2GPC.
In the wake of this diagnostic
sea change, impact litigation and legal scholarship began to challenge the status
quo, arguing that GD is, or at least could be, a “disability” under the ADA and the
Rehab Act.
8
Advocates advanced three primary arguments: (1) GD is a “distinct
diagnosis with physical roots—not a disorder of identity”
9
; (2) even assuming
arguendo that GD is a gender identity disorder, GD results from physical impair-
ments, or at least some plaintiffs’ GD results from physical impairments
10
; and
(3) construing the ADA or the Rehab Act otherwise would run afoul of the consti-
tutional right to equal protection emanating from the Fifth Amendment’s Due
Process Clause.
11
Thus, today, many stakeholders, including courts, administra-
tive agencies, legal scholars, and practitioners, have concluded that GD is (or can
be) a “disability” under the ADA and the Rehab Act, thereby triggering certain
employers’ obligations to reasonably accommodate employees with GD.
12
Part I
of this article traces and contextualizes this relatively recent and monumental
doctrinal transformation.
Throughout this doctrinal debate, the literature has focused, understandably,
on doctrine. However, what deserves additional attention are the actual work
4. The now-moot diagnostic criteria for GID can be found at AM. PSYCH. ASSOC., DIAGNOSTIC &
STATISTICAL MANUAL 481 (Michael B. First ed., 4th ed. rev. 2000). For the pre-2013 history of GID and
its precursor and related diagnoses, see Judith S. Stern & Claire V. Merkine, Brian L. v. Administration
for Children’s Services: Ambivalence Toward Gender Identity Disorder as a Medical Condition, 30
WOMEN’S RTS. L. REP. 566, 567–70 (2009).
5. Ann C. McGinley, Erasing Boundaries: Masculinities, Sexual Minorities, and Employment
Discrimination, 43 U. MICH. J. L. REFORM 713, 768 (2010) (“[T]he ADA expressly excludes
transgender persons from the definition of disability. . . .”); Neil Dishman, The Expanding Rights of
Transsexuals in the Workplace, 21 LAB. LAW. 121, 135 (2005) (“[D]oes discrimination against a
transsexual constitute discrimination on the basis of disability or handicap? Under federal law, the
answer is simple: no.”). On employers’ duty to reasonably accommodate an employee regarded as
having a disability, see Marsha R. Peterson, Note, Yes, There Is a Duty to Accommodate Someone
“Regarded As” Disabled Under the ADA, 7 NEV. L. J. 615, 638 (2007).
6. DSM-5, supra note 3, at 451–59, 814–15.
7.
8. See infra notes 9–11.
9. Barry & Levi, supra note 3, at 382 (citing Brief for Gay & Lesbian Advocates & Defenders et al.
as Amici Curiae Opp. to Def.’s Partial Motion to Dismiss at 12-15, Blatt v. Cabela’s Retail, Inc., (No.
5:14-CV-4822-JFL), 2017 WL 2178123 (E.D. Pa. May 18, 2017)).
10. Id. at 382–83 (citing Second Statement of Interest of the United States at 5, Blatt, (No. 5:14-CV-
04822-JFL), 2017 WL 2178123 (E.D. Pa. Nov. 16, 2015)).
11. Id. at 382 (citing Pl.’s Mem. of Law in Opp. to Def.’s Partial Motion to Dismiss Pl.’s First Am.
Compl. at 15–39, Blatt, (No. 5:14-CV-04822-JFL), 2017 WL 2178123 (E.D. Pa. May 18, 2017)).
12. See generally infra notes 64, 75, 77–78, 81–83.
2024] QUEER ACCOMMODATIONS 25
