1. Health
Cory Silverberg

DC Circuit Rules that Sexual Relations Constitutes a “Major Life Activity”

By July 25, 2008

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For many years the World Health Organization, among other international bodies, has affirmed that sexuality is an intrinsic part of life and that sexual health is an important part of overall health.

But for some Americans their right to sexual expression is curtailed legally because it isn’t always considered a legal right by the courts. If you’re non-disabled and heterosexual (and aren’t a member of the BDSM community) you may not have thought much about this since your sexuality (probably) hasn’t been greatly impacted by the law. But if you’re a member of any of the previously mentioned groups, or if your sexual expression is in some other way “non normative,” a legal decision handed down by the DC Circuit last week may be of interest.

The opinion was delivered in a case where a woman breast cancer survivor sued the U.S. State Department for discriminating against her based on her disability by rejecting her for a job in the Foreign Service. The proof of her disability was specifically given as her inability to engage in sexual relations. As part of the decision the judges had to determine whether or not an inability to have sexual relations constituted a limitation of a “major life activity.” In a 2-1 vote the judges ruled that sexual relations does in fact constitute a major life activity.

Here are a few selections from the judgment. In an earlier case referenced in the judgment the court agreed that human reproduction qualifies as a major life activity, but stopped short of saying that sexual relations did.

Based on the statute’s text, the Supreme Court’s reasoning in Bragdon, and a hefty dose of common sense, we hold that engaging in sexual relations qualifies as a major life activity under the Act.

Beginning with the statute, we can easily conclude without resorting to the dictionary that engaging in sexual relations clearly amounts to an “activity” in any sense of that word. As for the word “major,” the Supreme Court has explained that “the touchstone for determining an activity’s inclusion under the statutory rubric is its significance.” Id. (internal quotation marks omitted). At the risk of stating the obvious, sex is unquestionably a significant human activity, one our species has been engaging in at least since the biblical injunction to “be fruitful and multiply.” Genesis 1:28. 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 a crucial element in intimate relationships, sex easily qualifies as a “major” life activity.

According to Adams, her breast cancer treatment rendered her completely unable to engage in sexual relations. Due to the scarring from her mastectomy and breast reconstruction, her overall post-surgery physical appearance, lack of physical sensation, loss of libido accompanying her medication, or some combination of those factors, she claims that her “ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently.”

Not being a legal scholar, or really knowing much about law at all, I have no idea what the impact of this ruling might be in other areas of the law. But I’m still left with a few questions.

Most importantly, it seems as if they’ve sidestepped the question of defining “sexual relations”. There are several references to reproduction as forming the basis of what they consider to be sexual relations, but nowhere do they define it. That said, references to sexual relations both from the plaintiff and the judges seem to be surprisingly broad, including everything from body image and libido to ability to engage in physical activities and the emotional and spiritual fulfillment that may result from sexual activities. If there is the potential for this ruling to have legal ramifications elsewhere I’m pretty encouraged by the way sexual relations is depicted if not explicitly defined.

Read more – Disability Law 2.0: D.C. Circuit: Sexual Relations is a Major Life Activity, and Employer Need Not Know of Limitation to be Liable (Thanks Lawrence!)

Comments
July 30, 2008 at 5:24 pm
(1) Gord R says:

As a Canadian, it regularly shocks and saddens me that rights and privileges we now consider as ‘the proper and only way’ must be fought for piecemeal in the US. This is a case in point. No one can be discriminated against here on the basis of health status, regardless of what it impacts. No need to expose lurid details as was the case here. All that would be needed is evidence that employment has been denied as a result of mastectomy. Few employers here would dare to raise the issue. Those that did not spontaneously accommodate the situation face heavy penalties whern reported to the Human Rights Commission. Sexual function is nobody’s business but your own. What’s next? Screening potential male employees by having them drop trou to see if the penis has been amputated as a result of carcninoma? Testicle(s) removed for testicular cancer, predominantly a young male affliction? Displays of porn to ensure potency??? And by the way, with the exception of special accommodations for aboriginals, affirmative action is against the law in Canada. It violates our Charter of Rights and Freedoms. It is Canada that remains the real home of the free.

August 1, 2008 at 1:49 pm
(2) Amy says:

I don’t understand: why would someone need to be able to have sex in order to work for the State Department? Does the State Department employ sex workers?

August 1, 2008 at 7:24 pm
(3) Ross Grady says:

It makes more sense when you read the actual decision:

“Appellant Kathy Adams, a candidate for the United States Foreign Service, passed the required entrance examinations and received a medical clearance, only to learn thereafter that she had been diagnosed with stage-one breast cancer. Upon hearing the news, the
State Department, expressing concern that many of its
overseas posts lack the follow-up care it believed Adams required, revoked her medical clearance, disqualifying her from the Foreign Service.”

So apparently you’re required to be “healthy” as defined by some State Dept. standard in order to qualify for Foreign Service.

Continuing with the quote from the case:

“Adams sued under the Rehabilitation Act of 1973, which prohibits federal agencies from discriminating in employment against disabled individuals—including those with a “record of” a disability, 29 U.S.C. § 705(20)(B)(ii). In her complaint, she alleged that
her surgical treatment rendered her cancer-free and able to work anywhere in the world without requiring specialized follow-up care. Without allowing discovery, the district court granted summary judgment to the State Department, concluding among other things that Adams had no record of a disability as defined in the statute.”

So in essence, in her suit against the State Dept., her lawyers concluded that the most-likely course of action was to sue based on discrimination against someone on the basis of disability. They lost the first round, on the somewhat absurd-seeming claim that she *had* no documented disability (this despite the fact that she’d originally been denied employment *because* of her disability, in essence).

So on appeal they argued that her inability to engage in & enjoy sex was itself a disability, and won on those grounds.

The original case sounds like a quintessential Catch-22:

State Dept: “You can’t have this job, because you are disabled [by cancer.]”

Adams: “Well, I had a mastectomy, my cancer is all gone, and in any case you can’t deny me a job based upon my disability anyway.”

Courts: “We don’t see any evidence of a disability, so you don’t have standing to sue.”

It’s good that they reversed the original decision, but the actual grounds for reversal are pretty weird, though the collateral impact is potentially awesome.

August 2, 2008 at 4:37 pm
(4) Andrew says:

I’m asexual (not sexually attracted to anyone) and my sexual orientation has just been considered a disability. I consider this a disaster. Society is reluctant to acknowledge the existence of healthy adults who aren’t interested in having sex and never have been, and this utter insensitivity is nowhere more clearly expressed than in an opinion like this. While I feel sympathetic towards the plantif, I think the real problem comes from a very poorly written law. (You can be fired on account of having cancer if the cancer doesn’t cause a disability. But if you do have a disability, then you can sue.)

People tend to think of sexual freedom as only consisting of the right to say “yes” to sex. It’s okay to say no to some person or at some time, but it is assumed that without sex, it is impossible to be happy, which is sheer nonsense. There can be no sexual freedom until it is acknowledged that it’s okay simply to be uninterested.

August 3, 2008 at 3:23 pm
(5) Cory says:

Hi Andrew,

Thanks so much for adding this important perspective. I have for some time been meaning to add content to the Sexuality site about asexuality and absolutely feel that living a life without engaging in sexual activities is not only anyone’s right, but it is also a life that shouldn’t be assumed to be problematic.

While the legal implications of this case are still a bit fuzzy for me (but the comments above are helping) I don’t think that what disability activists and allies (of which I count myself) are fighting for the idea that everyone MUST engage in specific sexual activities. Far from it. I think you’ll find that sex and disability activists have a much broader understanding of sexuality than whatever “maintsream” views are. And the last thing I, or I suspect most disability activists, would want is to tell you how you must be a sexually healthy person.

Thanks again for taking the time to add your thoughts, I really appreciate them.

Cory

August 4, 2008 at 2:34 pm
(6) CM says:

I don’t believe this ruling actually does classify asexuality as a disability–YET. It’s about not being able to have sex, rather than not wanting to have sex. However, it’s just a few steps away, since with this precedent in place, someone can come along and say that the inability to experience sexual attraction (nevermind that it’s not necessarily an inability for many asexuals, but rather an extremely low frequency of occurence) constitutes a disability, and I think that possibility is fairly likely, given that I have had a former sexual partner tell me, point blank, that I have a “sexual disability.”

When that happened, I glibly wondered what the future of the asexual community would look like–would we embrace this new classification and join up with disability activists? Somehow I doubted it, but at the time I considered the possibility of legal reclassification remote enough not to pursue the thought much further; recent events are proving it’s more serious than I realized.

That said, I really don’t think this was an appropriate course of action for this woman (or her lawyers) to take. She should have challenged the law that says it’s okay to fire someone for having cancer, not challenged the classifications of a disability. Or, even better, she could have just proved that she no longer has cancer, and therefore her employer’s paternalistic concern about the post lacking proper medical care is misplaced.

I see disastrous consequences up ahead with this ruling in place as a precedent. The legal definitions of a disability are already so broad (and unregulated) that people who don’t have any disability can quite easily get a handicapped parking permit. What’s more, even if we accept her claim that she has a sexual disability, that should have no bearing on her employment status. While they may both be “major life activities,” working and having sex are and should remain (unless you’re a sex worker) entirely separate. She is basically claiming that she was fired for being unable to have sex, which is a feminist’s worst nightmare (and also, as I understand her employer’s original claim, untrue).

What will prevent other women from, upon being fired, challenging their employer’s decision on the basis that they were discriminated against for having a sexual disability? The ruling creates a legal loophole that runs the risk of eventually stigmatizing people with illnesses and uncloseted asexuals (though I don’t think true asexuals would do this because we wouldn’t accept being called disabled, due to the subjective nature of determining one’s asexuality, it would be easy enough for people to pose as asexual in order to benefit from this), as being a liability for the risk of lawsuits, and therefore less likely to be hired in the first place. This stigma already affects disabled people; we ought to be doing something to get rid of it, rather than expanding it to affect people who are not disabled.

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