Sex is a "major life activity" under the ADA

Joining the Ninth Circuit, the D.C. Circuit today holds that sex is a "major life activity" for purposes of the Americans with Disabilities Act. (Well, technically the Rehabilitation Act, but the two laws overlap almost completely.) The Act defines a "disability" as "a physical or mental impairment which substantially limits one or more . . . major life activities" - a standard plaintiffs must meet to make a disability discrimination claim. The Supreme Court held that reproduction is a major life activity in Bragdon v. Abbott (1998) (which also recognized that asymptomatic HIV may qualify as a "disability").

The D.C. Circuit's decision says:

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.

Yes, that's right, the court just cited the Book of Genesis as an authority on the importance of sex!

The court says that the State Department didn't dispute this point, but the dissent notes the Government's position was narrower than the court's: it argued that sex "can" qualify as a major life activity "to the [extent] that procreation may be limited." So we're back at Genesis: it's only really the fruitful multiplying that matters. Unfortunately, given the court's language, the decision could easily be interpreted as stating that narrow, heterosexist position.

Today's decision, Adams v. Rice (PDF), concerns a woman who suffered from breast cancer and was denied an overseas post with the State Department, even though (allegedly) treatment had rendered her cancer-free. Adams argued that she was disabled in part because her treatment had deleterious effects on her sex life. In an affidavit she said:

Like many breast cancer survivors, whether by virtue of my discomfort with the way my body looks, loss of sensation after my surgeries, my deep-seated fear that prospective suitors will reject me because of my history of cancer, loss of a breast, and current physical appearance, or the side effects of medication that causes loss of libido, I now find that the prospect of dating and developing an intimate relationship is just too painful and frightening. While I have overcome the physical disease, my ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently.

For whatever reason - and to my mind surprisingly, but happily - the State Department did not dispute the allegation that Adams's sex life was substantially limited. So the court was not called upon to determine whether the impact of disablism - which is, it seems to me, among the reasons Adams is saying her sex life has been limiting - can be part of the "substantial limitation" analysis. But as the court pointed out, the jury will ultimately make this fact determination. One imagines that the State Department's cross examination of Ms. Adams could get pretty ugly.

Also of interest, the Government argued that its treatment of Adams on account of her cancer wasn't illegal because, well, how were they supposed to know Adams wasn't getting laid, and therefore was disabled? The court rightly rejected this argument.

The dissent seems to say that Adams has not produced evidence of a disability because a) she has not been clear about when her sex troubles started, and b) her real problem is her man-repelling mastectomy, not the cancer itself.