Thursday, July 24, 2008

Is Inability to Have Sex a Disability? Yes, Says D.C. Circuit

KJ brought this article to my attention the other day. The gist is as follows. In 2002, Kathy Adams took the Foreign Service entrance exams and passed with flying colors. Before her training started in January 2004, however, she was diagnosed with breast cancer and had surgery - specifically, she had a mastectomy and had her ovaries and fallopian tubes removed. The State Department then denied her entry into the Foreign Service because they could not guarantee she would have access to adequate follow-up care in her overseas assignments. Adams sued, claiming that the State Department was illegally discriminating against her because she had a disability. What disability was that, you ask? Sexual incapacitation.

Wait a minute - what now? Adams claimed, reasonably enough, that having her lady-parts removed made her gain weight and lose her libido, and that the resulting loss of ability to have sex constituted the loss of a "major life activity" as defined under the Americans with Disabilities Act. Curious, I looked it up to see how it defines "disability":

(2) Disability

The term "disability" means, with respect to an individual

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such impairment.

So it's kind of vague, but based on my extremely amateur assessment and not having seen any of the evidence from the case, my guess is that I'd probably agree with the judges' assertions that 1) Adams does have a physical impairment that substantially limits her ability to have sex; 2) sex is a "major life activity" protected under the ADA; and 3) therefore, sexual impairment like Adams's qualifies as a disability under the ADA. (So, to answer your question, KJ: Yes, you can show up at work, get fired, and then claim you have vulvodynia and appeal under the ADA.)

Leaving aside some of the peculiarities of the case - in particular, the fact that the judges ruled that it didn't matter that the State Department didn't know the specifics about Adams's disability - KJ and I both found this quote from one of the judges in the majority rather puzzling, if not annoying:
"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,' " appellate Judge David Tatel wrote, adding a citation to the Book of Genesis.
It's puzzling in that you don't see too many public figures these days using the Bible to prove what is ultimately a sex-positive stance: that the ability to have sex is a fundamental aspect of what it means to be human. But I prefer my sex godless, thank you, and that's what makes this statement annoying to me on first blush. My personal beliefs aside, it's also annoying from a logical standpoint. Humans have been around - and have been having sex - much longer than the Bible has existed, so to say that our species has been fucking since "at least the biblical injunction to 'be fruitful and multiply' " is to say something that's painfully obvious, if not downright moronic. And a D.C. Circuit Court judge ought to know that.

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