Federal Appeals Court Rules Inability To Have Sex Is Protected Under Americans With Disabilities Act

Main Category: Sexual Health / STDs
Also Included In: Medical Malpractice / Litigation;  Public Health;  Cancer / Oncology
Article Date: 25 Jul 2008 - 6:00 PDT

email to a friend   printer friendly   view / write opinions   rate article

The U.S. Court of Appeals for the District of Columbia Circuit in a 2-1 decision on Friday ruled for the first time that laws that protect people with disabilities from discrimination should include "sexual relations," McClatchy/Houston Chronicle reports. The 1973 Rehabilitation Act, also known as the Americans With Disabilities Act, bars discrimination against people living with an impairment that "substantially limits" a "major" life activity. According to McClatchy/Chronicle, courts struggle to explain what constitutes a major life activity, and Friday's ruling "cracks open the courtroom door for additional legal challenges by those who are sexually incapacitated."

The case involved Kathy Adams, a breast cancer survivor from South Carolina. Adams ranked seventh out of 200 candidates who took the State Department's Foreign Service written and oral exams in 2002 and was set to start training in January 2004. Before her training started, she was diagnosed with breast cancer. According to McClatchy/Chronicle, Adams underwent a mastectomy, had her ovaries and fallopian tubes removed, gained weight and "felt her libido wither."

A State Department nurse testified that Adams was denied entry into the Foreign Service because the department "could not guarantee (her) access to the required medical follow-up and surveillance at all overseas assignments." State Department officials said the department knew about Adams' breast cancer diagnosis but did not know about Adams' sexual disability when it declined to hire her, and the dissenting appellate judge agreed, McClatchy/Chronicle reports. The court majority, however, reasoned that "it makes no difference whether an employer has precise knowledge of an employee's substantial limitation" as long as the employer knows about the impairment.

"As a basic physiological act practiced regularly by a vast portion of the population, a cornerstone of family and marital life, a conduit to emotional and spiritual fulfillment, and crucial element in intimate relationships, sex easily qualifies as a major life activity," Judge David Tatel wrote in the majority opinion.

Adams wants to compel the State Department to hire her as a Foreign Service officer and provide back pay. She now will go before a jury and trial judge unless the case is settled. David Shapiro, Adams' attorney, said, "I think it's a major victory for former cancer patients and for anyone who has had their sex life disrupted." A State Department spokesperson said the department still is reviewing the ruling (McClatchy/Houston Chronicle, 7/22).

Reprinted with kind permission from http://www.nationalpartnership.org. You can view the entire Daily Women's Health Policy Report, search the archives, or sign up for email delivery here. The Daily Women's Health Policy Report is a free service of the National Partnership for Women & Families, published by The Advisory Board Company.

© 2008 The Advisory Board Company. All rights reserved.