In the summer of 1989, U.S. senators debating the Americans with Disabilities Act excluded behavior they deemed immoral from the ADA’s protections, including “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders,” according to the text of the law.

That portion of the ADA hasn’t been challenged until now.

Kate Lynn Blatt, a transgender woman who was fired from her job at Cabela’s, filed a discrimination suit last summer making claims under both the ADA and Title VII of the Civil Rights Act, which is more often used in cases like this one.

Ms. Blatt, in a suit she filed against her employer, said she was forced to use the men’s bathroom at work, and that her colleagues called her “ladyboy,” “freak” and “sinner.”

She and her lawyers filed a brief detailing a head-on challenge to the constitutionality of the ADA’s exclusion of transgender people in the same week that Pennsylvania Gov. Tom Wolf announced that he had chosen a transgender woman to serve as the state physician general and President Barack Obama included transgender people in a passage of his State of the Union address remarking on Americans’ respect for human dignity.

“This is the next logical progression of the LGBT movement,” said Jillian Todd Weiss, a professor at Ramapo College’s School of Social Science and Human Services who is also working on the high-profile case in Texas brought against Saks Fifth Avenue by a transgender employee.

Over the past 15 years, laws like Title VII barring discrimination based on sex emerged as the primary route to fight injustice for transsexual people, said Ilona Turner of the Transgender Law Center in California. Over the years, courts have developed strong precedent in favor of applying sex discrimination laws to transgender cases.

In the few cases brought by transgender people that have included ADA claims, those claims have been quickly disposed of by the courts because of the clear exemption included in the law, Ms. Turner said.

The primary argument that Cabela’s had made in its bid to dismiss the ADA claims in Ms. Blatt’s case is the exemption. Susan Guerette of Fisher & Phillips in Radnor, who is representing Cabela’s, couldn’t be reached for comment.

Referring to the trend toward sex discrimination laws for transgender discrimination cases, Gregory Nevins of Lambda Legal in Atlanta said, “It’s been more a matter of strategy in the past,” since those laws had developed a good track record in the courts.

The lawyers at Sidney L. Gold & Associates in Philadelphia decided to take on the question of the ADA’s constitutionality because there are people who have a serious medical condition, who are disabled under the law, but can’t bring a claim under the ADA because of its exclusion, said Brian Farrell, who is representing Ms. Blatt with Neelima Vanguri and Sidney L. Gold.

They leaned on the U.S. Supreme Court’s 2013 decision in United States v. Windsor — which gutted the federal Defense of Marriage Act by finding its definition of marriage, which excluded same-sex couples, as unconstitutional and set in motion a domino effect that toppled dozens of states’ versions of DOMA, including Pennsylvania’s.

“Similar to the Supreme Court’s admonition in United States v. Windsor ... the exclusion injures the very class of people the ADA seeks to protect,” according to the brief, urging U.S. District Judge Jeffrey Schmehl of the Eastern District of Pennsylvania, who just recently took his seat on the bench, to find the exclusion unconstitutional.

Also like the Windsor case, in which the U.S. Department of Justice declined to defend DOMA, the Gold & Associates lawyers are hoping that the attorney general will decide not to defend the ADA’s exclusion of transgender people.

Last month, Attorney General Eric Holder issued a memo officially directing the DOJ to take the position in litigation that Title VII protects transgender people. And in July, Mr. Obama signed an executive order prohibiting federal contractors from discriminating based on sexual orientation or gender identity.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. To read more articles like this, visit www.thelegalintelligencer.com.

First Published: January 27, 2015, 3:00 p.m.