Impact litigation? The ADA vs. “gender identity” laws

I received the following comment from a reader and decided that the best course of action– BECAUSE WE DO NOT GIVE LEGAL ADVICE AT SEXNOTGENDER.COM– was to edit it slightly for clarity and open it up for a larger discussion.

It is, indeed, a FASCINATING legal question. I love it! Please email me at if you have any private information about similar situations.



I have a question that I hope someone could help me with. I’m on Social Security Disability because of major depression, anxiety disorder, and PTSD. I live in a state that with “gender identity” anti-discrimination laws.

Because of a history of PTSD caused in part by sexual molestation and abuse as a child, I know that having to share a restroom with a biological male would be traumatic for me. Indeed, even the thought of having to share a restroom with a male causes me distress. When I was a child, I was sexually assaulted in a bathroom by a male relative.

These are my questions:

(1.) Why is “gender identity” which essentially amounts to a psychological diagnosis more important than PTSD from sexual abuse which definitely is a psychological disorder? When one in six women have been victims of rape or sexual assault, common sense tells us that many of these women would have some degree of PTSD. Isn’t it true that mental illnesses including PTSD can fall under the Americans with Disabilities Act*? How can any state prove that one mental condition is more important than another?

(2.) Other than a letter from a therapist or psychiatrist, how does one go about proving “gender dysphoria”? People with a clear history of panic disorder and PTSD also have a documented psychiatric disorder.

(3.) Since I’m on Social Security Disability because of major depression, panic disorder, and PTSD, why couldn’t I type up an ADA Request for a Reasonable Accommodation stating that it would be traumatic for me to share a restroom with a male? I do have a disability and I’m seeing a psychiatrist.

I would very much appreciate advice on how to proceed with an ADA Request for Reasonable Accommodation. This is uncharted territory, and I want to handle this correctly.


See 42 U.S.C. § 12211(b)(1) (1997); 29 U.S.C. § 706(8)(F)(i) (1997).


  1. Gene K. · ·

    Yes, this is an excellent question. I don’t want to get too specific about myself but…I certainly relate to not wanting to share public restroom with males due to personal history (whether that rises to level of diagnosis of PTSD or not).

  2. Gene K. · ·

    Another thought is, the expression, “possession is nine-tenths the law” – I just looked it up on wikipedia: “…The adage is not literally true, that by law the person in possession is presumed to have a nine times stronger claim than anyone else, but that “it places in a strong light the legal truth that every claimant must succeed by the strength of his own title, and not by the weakness of his antagonist’s.”[3]

    It’s a women’s bathroom, biological females are ALREADY in possession of that space…well, I’m not a lawyer, but it seems like, if we have two psychological diagnoses squaring off with each other, maybe this tips it in favor of biological females…WE’RE ALREADY THERE, the ADA “accommodation” is already in effect, implicitly, for women with PTSD, sexual abuse survivors, I would also add in victims of childhood abuse of any kind.

    Just throwing that out there.

  3. oserchenma · ·

    I can’t really speak legally here either. But I can say that it’s my understanding that the ADA does not cover gender identity disorder. I believe I have read that transgender people were specifically removed from coverage (discriminatorily) by Sen Strom Thurmond and others when the ADA was first passed. Does anyone else know if that has changed? If not, then the answer to your first question is that trans concerns do not trump PTSD concerns because the ADA does not apply. The laws that bring trans activists into women’s bathrooms are based on civil rights, nondiscrimination laws (in an increasing number of jurisdictions). Do they trump the needs of people with disabilitites like you describe? My guess is that the result of a direct conflict might be that you would receive a “reasonable accommodation” in a specific situation of conflict. But what that would consist of, how you would be protected, I don’t know. As for getting declaratory relief in “impact litigation” or an advance injunction, in other words getting a court opinion on the question before it comes up for you, there are resources in the disabled community that might be available to you.

    It is an interesting thought that, by taking the position that they do not suffer from a mental illness, trans theorists would be unable to object that they too should be protected with these resources. I do think that trans theorists had to take this position since they were unprotected by the ADA. Their legal position is tenuous and contradictory IMH non-legal opinion, as they still have to assert a mental illness of sorts to obtain surgery. The use of “gender identity” laws based on civil rights statutes that conflate gender with sex is pulling us all into a mighty morass. Thanks Thurmond, you asshole, thank goodness you didn’t live to 200 like we were all afraid you would.

  4. When people think of PTSD, they often think of veterans who have experienced combat. Research shows that women are more likely to develop PTSD than males.

    An estimated one out of 10 women will get PTSD at some time in their lives. Women are about twice as likely as men to develop PTSD. This may be due to the fact that women tend to experience interpersonal violence (such as domestic violence, rape or abuse) more often than men.

    Gender Differences in PTSD Risk May Be Due to Heightened Fear Conditioning in Women

    Women exposed to trauma may be at greater risk of developing post-traumatic stress disorder because of a heightened fear response, according to a new study.

    UCSF researchers from the San Francisco Veterans Affairs Medical Center (SFVAMC) and SFVAMC-based Northern California Institute for Research and Education (NCIRE) examined individuals with PTSD symptoms and found that the women in the study were more likely than the men to develop a stronger fear response, and – once conditioned to respond fearfully – more likely to have stronger responses to fear-inducing stimuli.

    “Differences in the learning of fear may be one mechanism that may be important in the development of PTSD,” said Sabra Inslicht, PhD, a UCSF assistant professor of psychiatry at the SFVAMC, and the lead author of a study published in the Oct. 26 online edition of the Journal of Psychiatric Research.

    UCSF, which has been affiliated with the SFVAMC since the 1960s, is a leader in the scientific study and treatment of PTSD and traumatic brain injuries. Each year, UCSF and SFVAMC researchers are key participants in “The Brain at War” symposium, the leading national conference bringing together scientists, physicians, military personnel and administrative leaders to discuss the neurocognitive consequences of combat.

    Inslicht, who first presented some of the new findings at the 2012 symposium, studies how men and women learn and unlearn the fear response. Scientists call these processes “fear conditioning” and “fear extinction.”

    “The preliminary findings of our experiment suggest that women with PTSD had greater fear-conditioning responses than did men with PTSD,” she said. “This suggests that there may be differences in how men and women learn to fear. That may be one reason that the rates of PTSD are higher in women compared to men,” she said.

    Greater fear conditioning in women might reflect a pre-existing vulnerability, or might arise in a sex-dependent way with the development of PTSD, Inslicht said.

    Research Suggests Why and How Women Are More Vulnerable to PTSD

    Kerry J. Ressler, M.D., Ph.D., member of the Brain & Behavior Research Foundation Scientific Council, led recent research that may demonstrate one reason why women are generally more vulnerable to post-traumatic stress disorder (PTSD) than men and pinpointed a genetic anomaly that could account for the disparity.

    In an initial study of 64 subjects with a history of significant trauma, Dr. Ressler and his team found that a high blood level of a hormone called PACAP (pituitary adenylate cyclaseactivating polypeptide) in women but not in men was associated with women’s higher incidence of PTSD. In addition to the differences observed between the sexes, the research also showed that women with above-average PACAP levels had PTSD symptom scores five times higher than women with lower PACAP levels.

    To explore the basis of these findings, the team conducted genetic studies in more than 1,200 traumatized subjects, examining 44 single nucleotide polymorphisms, or SNPS, of genes associated with the PACAP system. (SNPs, pronounced “snips,” are variations in the DNA sequence in a gene.) They found that a variation in the gene for the PACAP receptor, which appears to change how that gene responds to the primary female hormone estrogen, was linked to PTSD risk in women.

    PACAP has long been known to be a stress-response hormone, but its specific role in PTSD has been unclear. The study’s findings, which were reported in the Feb. 24 issue of the journal Nature, suggest strongly to Dr. Ressler and his colleagues that PACAP and its receptor system may be integrally involved in regulating the psychological and physiological responses to traumatic stress. The research also seems to indicate that men and women who have been traumatized may arrive at PTSD by different bio-logical pathways, and that now researchers have a clue as to how that works – the genetic data that points to changes in the ability to respond to estrogen.

  5. A Marker for PTSD in Women?


    Only a small minority of people who fall victim to a violent attack or witness a bloody accident suffer the recurring nightmares, hypervigilance, and other symptoms of posttraumatic stress disorder (PTSD). Women seem to be twice as susceptible as men, but otherwise researchers know virtually nothing about who is most at risk or why. Now a study has linked a genetic mutation and blood levels of a particular peptide—a compound made from a short string of the same building blocks that make up proteins—to the severity of PTSD symptoms in women. The finding could lead to tests to identify people who may need extra help after a traumatic event.

    In the new study, researchers led by Kerry Ressler, a psychiatrist and molecular neurobiologist at Emory University in Atlanta, focused on a peptide thought to play a role in cells’ response to stress: pituitary adenylate cyclase-activating polypeptide (PACAP). The team measured levels of PACAP in the blood of 64 patients who volunteered for their study at Grady Memorial Hospital in Atlanta. The vast majority of volunteers were from poor neighborhoods in the city, and Ressler says more than 90% reported having witnessed or suffered from a traumatic event such as gun violence or physical or sexual assault in the past.

    The researchers found a correlation between PACAP levels and scores on a standard scale of PTSD symptoms in women—but no such correlation in men. In a second group of 74 women, the researchers found a similar correlation between PACAP levels and symptom severity. Ressler estimates that with all else being equal, women with high PACAP levels are up to five times as likely as women with low levels to have symptoms severe enough to meet the diagnostic criteria for PTSD.

    The team also found a genetic link to PTSD. In a study with 1200 patients from the same hospital, the researchers found that a variation in the gene encoding the receptor for PACAP correlates with more severe symptoms in women—but not in men. Ressler estimates that women with the variation have up to twice the risk of developing PTSD after a traumatic event. All in all, the findings, published online today in Nature, suggest that PACAP and its receptor play an important role in determining PTSD susceptibility in women.

    But why only in women? Ressler hypothesizes that estrogen, the primary female sex hormone, may amplify the effects of stress. The gene for the PACAP receptor can be turned on and off by estrogen. And the genetic variation his group identified lies within one of the sites in the PACAP receptor gene that is specifically sensitive to estrogen and may alter the way estrogen regulates the gene’s activity.

  6. I imagine the high school girl who was brutally gang raped outside Richmond High School homecoming dance would have PTSD. I’m not a psychiatrist, but how can any young woman survive such a horrifying, brutal, sadistic ordeal and not be scarred for life. How does she feel having to share a restroom or locker with a biological male student? Did anyone ask how she feels? Under California’s AB1266, she has no choice. This is so wrong that I can’t find the words to express my utter outrage. Her personal pain is just as important as “gender dysphoria”. As brutal as her attack was, she is not the only female who has survived a brutal attack.

    “According to police, the sexual assault went on for more than two hours before someone called police on 911. Some accounts suggest more than 20 men were involved. The victim said on Monday that she remembers none of it.

    Anamaree Rea, a nurse who examined the woman after she was brought to the hospital, also testified on Monday. The prosecution projected horrific images of the victim’s wounds and bruises. Rea told the jury that on the night of the crime, Jane Doe’s face was so swollen it looked like a “moon shape.”

    One of her toenails had been torn off and she had what appeared to be road rash on her her legs and back. The nurse testified that the marks on the victim’s back were not cigarette burns but abrasions. “The first layer of skin had come off. There were more areas of abrasion, erythema and redness on the left side of her back,” Rea said.”

  7. Based on rape and sexual assault statistics alone, females have a clear historical reason to be naturally suspicious of any male invading their personal space, and girls and women are most vulnerable when they are using a toilet, showering, or undressing. Stating that the vast majority of sex offenders are male is a fact.

    Center for Sex Offender Management
    A Project of the Office of Justice Programs, U.S. Department of Justice
    Female Sex Offenders

    March 2007

    National criminal justice statistics reveal that of all adults and juveniles who come to the attention of the authorities for sex crimes, females account for less than 10% of these cases (FBI, 2006). Specifically, arrests of women represent only 1% of all adult arrests for forcible rape and 6% of all adult arrests for other sex offenses.

    In contrast to the approximately 140,000 men incarcerated in prisons nationwide for sex crimes, only 1,500 women are estimated to be imprisoned for these offenses (Harrison & Beck, 2005). They represent only 1% of all adults incarcerated for sex offenses, and 2% of all females in prison. Similarly, adolescent girls represent only 2% of the roughly 7,500 sex offenders placed in juvenile residential facilities nationwide, and they account for only 1% of all girls in residential placements (Snyder & Sickmund, 2006).

    We know that males are more likely to be registered sex offenders, and we also know that nearly one in five women have been victims of rape or sexual assault at some time in their lives.

    • Nearly 1 in 5 (18.3%) women and 1 in 71 men (1.4%) reported experiencing rape at some time in their lives.
    • A 2011 survey of high school students found that 11.8% of girls and 4.5% of boys from grades 9-12 reported that they were forced to have sexual intercourse at some time in their lives.
    • 42.2% of female rape victims were first raped before age 18.
    • 29.9% of female rape victims were first raped between the ages of 11-17.

  8. Studies going back decades clearly show paraphilias (voyeurism, pedophilia, etc.) are far more common in males.

    Isn’t it likely that the female victims of male voyeurs dressed as women that are listed below would be highly suspicious, hyper-vigilant, and fearful of any male dressed as a woman using the women’s restroom or locker room? Gender identity laws clearly have the potential to further traumatize women who have already experienced assault or a severe violation of their personal privacy.

    Man dressed as woman tried to take pictures in dorm, police say

    June 24, 2013

    Authorities allege Petersen went to Loma Linda University on June 4 and tried to enter several “students only” areas at a female dormitory. After staff members confronted him, officials say Peterson left the building and headed toward a parking lot, where he was met by security.
    Petersen managed to get inside his vehicle, authorities said, and allegedly struck a security guard while driving away.

    Sheriff’s officials said their investigation revealed Petersen dressed as a woman and went to other “female-only facilities” in Rancho Cucamonga and Yucaipa, where he allegedly tried to take pictures with a cellphone hidden in his purse.,0,7248055.story

    “Man Disguised as Woman Recorded “Hours” of Mall Restroom Video”

    The suspect was wearing a wig, women’s clothing and bra when he was found in a mall storage area, according to deputies.

    Los Angeles area
    May 16, 2013

    “Charges were filed Tuesday against a man who wore a wig and women’s clothing to disguise himself as he allegedly used a concealed camera to record “hours” of video of women in a Los Angeles-area department store restroom.

    Jason Pomare, 33, of Palmdale, was arrested Saturday after customers contacted security officers at a Macy’s store to report a man in the women’s restroom. The security officers contacted a deputy, who was on patrol at the Antelope Valley Mall when he saw a man matching the subject’s description leave the store.

    When the deputy found the man hiding in a mall storage area, the subject was wearing a wig, women’s clothing and bra, according to a statement from the Los Angeles County Sheriff’s Department.

    “The deputy noticed he was wearing a wig and appeared to have breasts,” said Sgt. Brian Hudson, of the Los Angeles County Sheriff’s Department.

    Pomare was charged Tuesday with six counts of unlawful use of a concealed camera for purposes of sexual gratification. After his arrest, investigators said a video camera found in his purse had “hours” of video of women using the restroom inside the store.”


    A man dressed as a woman has been spotted peeping at females and photographing them in a UC Berkeley locker room.

    According to an email just received from the UC Police Department:

    “On Monday, October 4, 2010 at 9:20 p.m. and again on Wednesday,

    October 6, 2010 at 4:30 p.m. a male disguised as a female was discovered in the Recreational Sports Facility women’s locker room. ”

    WEST LAFAYETTE, Ind. -” Purdue University police are investigating a reported incident in which a man dressed as a woman was seen taking photographs under the wall of a women’s bathroom stall in Yue-Kong Pao Hall of Visual and Performing Arts. The incident was reported to police about 3:30 p.m. Monday (March 31).

    According to a police report, a woman was in a bathroom stall on the third floor of the building and saw a hand holding a blue flip-phone camera beneath the door. She left the restroom and then returned to confront the person. At that point, she realized the person was a man dressed as a woman.”

    Police: Man in bra and wig found in women’s bathroom
    by KOMO 4 Staff
    Updated 08:27 p.m., Friday, March 16, 2012

    EVERETT, Wash. – A man wearing a bra and wig was arrested Friday after he was spotted in a women’s bathroom at Everett Community College, police said.

    Officers responded to the scene at about 1:30 p.m. after a college staff member said she saw the man go into the women’s rest room and alerted security personnel.

    An investigation found that the suspect had gone into the rest room while two women were inside, according to a police report. The women were later interviewed and said they had no idea that the man was there.

    When police interviewed the man, he claimed that he had gone into the bathroom to use the facilities.

    But the investigating officer noted that the man was wearing a wig and bra. A search also turned up a pair of woman’s panties in his front pocket, according to the police report.

    The man, later identified as Taylor J. Buehler, 18, of Lake Stevens, was placed under arrest.
    He admitted to officers that he was the suspect in an earlier voyeurism incident at Everett Community College on Monday, police said.

    In the earlier incident, he said he took a shower in the girls’ locker room for sexual gratification, acccording to the police report.”

    Males definitely must have a fascination with women’s restrooms. If males didn’t have a fascination with this voyeuristic pornography, why is there such a demand for it?
    24 million 400 thousand hits for the Goolge search ‘bathroom and voyeur’. Go to google and type bathroom and voyeur.

    About 24,400,000 results (0.22 seconds)

  9. Ok, I’m going to leave some comments here for future readers. It seems that we all need a little education on the ADA, including myself.

    YES, it applies to places of public accommodation. See Title III.

    “III-1.2000 Public accommodations. The broad range of title III obligations relating to “places of public accommodation” must be met by entities that the Department of Justice regulation labels as “public accommodations. ” In order to be considered a public accommodation with title III obligations, an entity must be private and it must —



    Lease to; or


    a place of public accommodation.

    What is a place of public accommodation? A place of public accommodation is a facility whose operations —

    Affect commerce; and

    Fall within at least one of the following 12 categories:

    1) Places of lodging (e.g. , inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);

    2) Establishments serving food or drink (e.g. , restaurants and bars);

    3) Places of exhibition or entertainment (e.g. , motion picture houses, theaters, concert halls, stadiums);

    4) Places of public gathering (e.g. , auditoriums, convention centers, lecture halls);

    5) Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers);

    6) Service establishments (e.g. , laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);

    7) Public transportation terminals, depots, or stations (not including facilities relating to air transportation);

    8) Places of public display or collection (e.g. , museums, libraries, galleries);

    9) Places of recreation (e.g. , parks, zoos, amusement parks);

    10) Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);

    11) Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and

    12) Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).”

  10. Here is some information on filing a complaint. An EVENT must occur before there can be a complaint, you see.

    “Title III prohibits discrimination based on disability in public accommodations. Private entities covered by title III include places of lodging, establishments serving food and drink, places of exhibition or entertainment, places of public gathering, sales or rental establishments, service establishments, stations used for specified public transportation, places of public display or collection, places of recreation, places of education, social service center establishments, and places of exercise or recreation. Title III also covers commercial facilities (such as warehouses, factories, and office buildings), private transportation services, and licensing and testing practices.

    If you feel you or another person have been discriminated against by an entity covered by title III, send a letter to the Department of Justice, at the address below, including the following information:
    – Your full name, address, and telephone number, and the name of the party discriminated against;

    – The name of the business, organization, or institution that you believe has discriminated;

    – A description of the act or acts of discrimination, the date or dates of the discriminatory acts, and the name or names of the individuals who you believe discriminated; and

    – Other information that you believe necessary to support your complaint. Please send copies of relevant documents. Do not send original documents. (Retain them.)

    Sign and send the letter to the address below:

    U.S. Department of Justice
    950 Pennsylvania Avenue, NW
    Civil Rights Division
    Disability Rights – NYAVE
    Washington, D.C. 20530”

  11. LOL at the being 5 feet tall and wanting to be a basketball player example!!


    Regulatory references: 28 CFR 36.104.

    III-2.1000 General. Title III of the ADA prohibits discrimination against any “individual with a disability. ” People commonly refer to disabilities or disabling conditions in a broad sense. For example, poverty or lack of education may impose real limitations on an individual’s opportunities. Likewise, being only five feet in height may prove to be an insurmountable barrier to an individual whose ambition is to play professional basketball. Although one might loosely characterize these conditions as “disabilities” in relation to the aspirations of the particular individual, the disabilities reached by title III are limited to those that meet the ADA’s legal definition — those that place substantial limitations on an individual’s major life activities.

    Title III protects three categories of individuals with disabilities:

    1) Individuals who have a physical or mental impairment that substantially limits one or more major life activities;

    2) Individuals who have a record of a physical or mental impairment that substantially limited one or more of the individual’s major life activities; and

    3) Individuals who are regarded as having such an impairment, whether they have the impairment or not.

  12. Same link as above: “The ADA, therefore, does not prohibit use of legitimate actuarial considerations to justify differential treatment of individuals with disabilities in insurance.”

    You don’t say. Legitimate actuarial considerations. Hmmm.


    That’s my best idea yet!

  14. In employment, this is from a NAMI page that I lost the link to. Sorry. Just some examples.

    “The ADA requires employers who provide “reasonable accommodations” for qualified individuals with disabilities. What are “reasonable accommodations” for people with severe mental illness?

    Examples of reasonable accommodations for people with severe mental illnesses included providing self-paced workloads and flexible hours, modifying job responsibilities, allowing leave (paid or unpaid) during periods of hospitalization or incapacity, assigning a supportive and understanding supervisor, modifying work hours to allow people to attend appointments with their psychiatrist, providing easy access to supervision and supports in the workplace, and providing frequent guidance and feedback about job performance.”

  15. Now this is something to explore, but only if you had someone like Colleen Francis or a registered sex offender in your neighborhood or something.

    “Direct threat. The ADA also excludes from coverage people who pose a “direct
    threat,” but this term requires some interpretation. The act does not fully define direct
    threat, nor does it indicate whether the threat need be directed toward others or if threat
    toward oneself is included. The Equal Employment Opportunity Commission (cf Parry,
    1994), however, provides guidelines that define direct threat under the ADA as “significant
    risk of substantial harm to the health or safety of others that cannot be eliminated or
    reduced by reasonable accommodations.” Certainly, the concept of direct harm is relevant to
    mental disability. There is a great deal of public fear and concern about the dangerousness of people with mental disabilities. It has generally been concluded that no such relation exists– that people with mental disabilities are no more or less dangerous that other members of society. However, more recent research (e.g., Monahan, 1992) raises the possibility that certain people with mental disabilities may be at increased risk for dangerousness, for instance people who do not follow their recommended medication regimen or people with co-occurring substance abuse problems. Therefore, it is difficult to conclude, based on the research literature, how the issue of direct threat might differentially affect people with mental disabilities. Based on the opinion of the U.S. Supreme Court, however, it is reasonable to assume that such determination will depend in large part on the judgment of mental health experts. Although the Court has made no ruling with regard to direct threat and mental disability, it has recommended that assessment of risk to others in the case of contagious disease be done by qualified medical judgment (School Board of Nassau County v. Arline, 1987). The concept of direct threat as it applies to persons with mental disabilities must be more fully explored by the courts and by mental health experts before it will be clearly understood.”

    And REMEMBER, ADA does NOT consider transsexualism a disability (see link in post).

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