LongLiveRock, via Wikimedia Commons

The U.S. Department of Justice has entered the fray in a New Jersey transgender rights suit in hopes of averting a constitutional challenge over protections granted under the Americans with Disabilities Act.

In a statement of interest filed Monday, the Justice Department asked the judge in the case not to address the plaintiff’s assertion in Doe v. Arrisi that a provision of the ADA denying protection to “transsexualism” and “gender identity disorders not resulting from physical impairments” is unconstitutional. The suit seeks to overturn a New Jersey law which prevents a transgender person to change the sex noted on the birth certificate unless the person had surgery to change the gender.

The DOJ was placed on notice because the suit argued that the ADA’s exclusion of transgender people is unconstitutional. But it said the judge need not address the constitutionality of the exclusion because the plaintiff in the case asserts that her gender identity disorder is the result of a physical impairment. The agency cited the plaintiff’s assertion in her complaint that her disorder “is a biological condition, likely due to brain neuroanatomy and the formation of that brain neuroanatomy in the womb.” That would place her outside the ADA’s exclusion for certain transgender persons, 42 U.S.C. §12211(b)(1), the DOJ said.

But, according to the plaintiff’s lawyer, the federal government’s participation is notable because it acknowledges that gender dysphoria is protected under the ADA.

Related issues are on the line in another case that is proceeding in the Eastern District of Pennsylvania, where a federal judge denied a motion to dismiss a transgender woman’s wrongful termination suit against sporting goods retailer Cabela’s on May 18. The judge in Blatt v. Cabela’s ruled that transgender people with gender identity disorder may pursue civil rights claims under the ADA.

Advocates explain that gender identity disorder, which is feelings of distress over one’s gender at birth, afflicts many transgender people but not all.

In the New Jersey case, 12 transgender rights groups submitted an amicus brief on July 7, urging the New Jersey court to be guided by the Cabela’s decision. The Jane Doe plaintiff seeks the right to change the gender on her birth certificate without having gender reassignment surgery. A statute allows such changes only for persons who have undergone gender reassignment surgery, but the plaintiff argues that some transgender people don’t undergo surgery for medical, financial or other reasons. In 2014 and again in 2015, Gov. Chris Christie vetoed bills that would have modified the statute to allow birth certificate changes by transgender people who did not have surgery.

The DOJ cites 42 U.S.C. §12211(b)(1), which exclude “transsexualism … [and] gender identity disorders not resulting from physical impairments” from the ADA’s definition of disability. Noting that the Jane Doe plaintiff in Arrisi alleges in her complaint that her transgender status “is a biological condition, likely due to brain neuroanatomy and the formation of that brain neuroanatomy in the womb,” the federal government argued that the statutory exclusion does not apply to the plaintiff.

The suit, filed in November 2016, names State Registrar Vincent Arrisi, Health Commissioner Cathleen Bennett, the Office of Vital Statistics and Registry and the New Jersey Department of Health as defendants. In lieu of an answer, the state defendants filed a motion to dismiss in December. That motion, which is still pending, says the plaintiff’s constitutional claims are faulty because the statute governing birth certificates does not burden any fundamental right. In addition, the state argues in its motion to dismiss that the plaintiff’s equal protection claim does not discriminate or classify based on anything other than innate physiological differences.

The DOJ filing said a well-settled legal principle calls on courts to avoid resolving the constitutionality of a federal statute if possible.

The federal government’s filing in the case declares that “it is the policy of the United States under the Trump administration that gender dysphoria falls under the Americans with Disabilities Act (‘ADA’) and supporting our trans plaintiff’s claim,” said Julie Chovanes, executive director and legal program director for Trans-Help, a Philadelphia-based group who represents the plaintiff. “Thank you to Justice and the Trump administration for working with us and recognizing that trans rights are everybody’s rights.”

The DOJ did not respond to a request for comment on its participation in the New Jersey case.

The state defendants are represented by Deputy Attorney General Francesco Ferrantelli Jr. A representative for the Attorney General’s Office did not respond to a request for comment.