v. Friedman, 96 Pa. Commw. 267, 507 A.2d 882, 885-86 (Pa. Commw. Ct. 1986) (holding that plaintiff's "neurotic compulsion for lateness" did not constitute a mental impairment under § 44.4). Thus, the fact that transsexualism is a diagnosable condition does not necessarily lead to the conclusion that it is an "impairment" under § 44.4.
When confronted with questions of interpretation under the PHRA and the regulations promulgated thereunder, Pennsylvania's courts have looked to cases decided under analogous statutory schemes in other states as persuasive authority. See, e.g., McCloskey v. Nu-Car Carriers, Inc., 387 Pa. Super. 466, 564 A.2d 485, 488 (Pa. Super. Ct. 1989), appeal denied, 525 Pa. 585, 575 A.2d 115 (Pa. 1990). In Sommers v. Iowa Civil Rights Comm'n, 337 N.W.2d 470, 47 Fair Empl. Prac. Cas. (BNA) 1217 (Iowa 1983), Iowa's Supreme Court rejected a claim that transsexualism was a "physical or mental impairment" under a regulatory framework modeled after the Rehabilitation Act and, therefore, identical to that employed in Pennsylvania. First, the court rejected the plaintiff's contention that transsexualism constituted a physical impairment.
Id. As to the plaintiff's claim that transsexualism constitutes a "mental impairment," the court concluded that transsexualism lacks the inherent propensity to limit major life activities of the specific enumerated examples of mental impairments in the regulation. Id. Accordingly, the court held that the legislature did not intend to include transsexualism as a protected handicap. Id.
As in Sommers, the plaintiff did not allege in the complaint that she suffers from any organic disorder of the body. Thus, she is not physically impaired. Further, the principle of ejusdem generis relied upon by the Court in Sommers applies with equal force under the PHRA. See 1 Pa. Cons. Stat. Ann. § 1903(b) (Purdon Supp. 1993) ("General words shall be construed to take their meanings from preceding words."); Pennsylvania Indus. for the Blind & Handicapped v. Larson, 496 Pa. 1, 436 A.2d 122, 123 (Pa. 1981). In defining "mental impairment," the regulations specifically include such disorders as "mental or psychological disorder, such as mental illness, and specific learning disabilities." 16 Pa. Code § 44.4(ii)(A) (1992). These disorders, unlike transsexualism, are inherently prone to limit major life activities. See Sommers, supra, at 1219. Indeed, the plaintiff avers in her complaint that her transsexualism "in no way interfered with [her] ability to perform her functions as an employee for AMTRAK." (Complaint, P 29). That transsexualism is distinguishable from the specifically enumerated mental impairments in § 44.4 in terms of its inherent effect on major life activities weighs heavily in favor of concluding that the legislature did not intend to include transsexualism to as a protected handicap.
Moreover, the express language of the Rehabilitation Act undercuts the plaintiff's claim. The plaintiff's reliance on Doe and Blackwood, which were decided under the Rehabilitation Act, overlooks the recent amendment to the Act, which unambiguously excludes transsexualism from the definition of the phrase "individual with a disability." Pub. L. 102-569, § 102, 106 Stat. 4349 (1992) (codified at 29 U.S.C. § 706(8)(F)(i)). As the defendant correctly recognizes, this amendment did not effectuate a substantive change in the law, but rather, merely "clarified the original intent of Congress as to the parameters of the definition of disabled individual under [the Rehabilitation Act]." Winston v. Maine Technical College Sys., 631 A.2d 70, 1993 WL 343527, at *4 (Maine Sept. 1, 1993). Thus, Pub. L. 102-569 reveals that Doe and Blackwell were contrary to Congress' intent. For the foregoing reasons, the Court holds that the plaintiff has failed to state a claim upon which relief may be granted under the PHRA.
2. Transsexualism as a Perceived Handicap
The plaintiff's final argument is that she has stated a claim under the PHRA because she was regarded as having an impairment by AMTRAK. 16 Pa. Code § 44.4(i)(C) (1992). The phrase "is regarded as having an impairment" means that an individual
has a physical or mental impairment that does not substantially limit major life activities but that is treated by an employer . . . as constituting a limitation; has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward the impairment; or has none of the impairments defined in subparagraph (i)(A) but is treated by an employer . . . as having an impairment.
Id. § 44.4(ii)(D). The plaintiff's position is that she was "regarded as having an impairment" under the third prong of the definition in § 44.4(ii)(D), the so-called "perceived impairment" prong. More specifically, relying upon Civil Service Comm'n v. Pennsylvania Human Relations Comm'n, 124 Pa. Commw. 518, 556 A.2d 933, 936 (Pa. Commw. Ct. 1989), the plaintiff asserts that she can state a claim under the "perceived impairment" prong even if her transsexualism does not constitute an actual physical or mental impairment under the PHRA and accompanying regulations.
The plaintiff's argument overlooks the fact that the Pennsylvania Supreme Court reversed the Commonwealth Court's decision in Civil Service Comm'n on this very issue. Civil Service Comm'n v. Pennsylvania Human Relations Comm'n, 527 Pa. 315, 591 A.2d 281, 284 (Pa. 1991). The Pennsylvania Supreme Court was presented with the question of whether an individual's prospective employer "regarded him as having an impairment" under the third prong of § 44.4(ii)(D) due to the individual's obesity. 591 A.2d at 282. In language that is apropos to the present case, the court concluded that "DeMarco has not shown that obesity is a handicap within the meaning of the PHRA. Commonwealth Court, therefore, was in error in concluding that DeMarco was regarded as having a handicap under the terms of the PHRA." Id. at 284. Thus, in Civil Service Comm'n, the Pennsylvania Supreme Court drastically narrowed the scope of the PHRA by interpreting the third prong of § 44.4(ii)(D) to require proof an actual impairment. The court's reasoning applies with equal force to claims based upon a mental impairment.
Whether the Pennsylvania Supreme Court's holding in Civil Service Comm'n comports with the intent of Pennsylvania's General Assembly is not for the Court to decide. The Court is bound to follow the instructions of Pennsylvania's Supreme Court as to its interpretation of Pennsylvania law. Accordingly, having concluded that transsexualism is not an actual "physical or mental impairment" under § 44.4, the Court must also conclude that the plaintiff cannot state a claim based upon § 44.4(ii)(D).
An appropriate Order follows.
AND NOW, this 30th day of November, 1993, upon consideration of the Defendant National Railroad Passenger Corporation's ("AMTRAK") Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), IT IS HEREBY ORDERED that the Defendant's Motion is GRANTED.
IT IS FURTHER ORDERED that:
(1) the Plaintiff's Complaint is DISMISSED ; and
(2) the Defendant's Motion to Strike Certain Demands is DENIED as moot.
BY THE COURT:
HERBERT J. HUTTON, J.