protected by the ADA. (regardless of its status under APA).

Title II of the Americans with Disabilities Act prohibits discrimination against disabled persons by public entities. 42 U.S.C. §§ 12101 et seq. (1994). It provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, OR BE SUBJECT TO DISCRIMINATION BY SUCH ENTITY." 42 U.S.C. § 12132. A "public entity" is defined as "any department, agency ... or other instrumentality of a State ... government." 42 U.S.C. § 12131(1)(B).

This includes CPS. However, in addition to alcoholism and illegal drug use exemptions from disability protection, the ADA also enumerates a number of psychological impairments which are not disabilities and thus cannot give rise to a claim under the ADA.

These disorders include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs. 42 U.S.C. §§ 12208, 12211(b) (1994). Homosexuality and bisexuality are also identified as being neither impairments nor disabilities. 42 U.S.C. § 12211(a) (1994).

Even though Kevin's orientation is not a suspect class, nor is it a disability recognized by the ADA, there is still a violation of his rights under the = protection clause if there is no rational basis for state action. He has a protected liberty interest with regard to the custody of his child and his procedural and/or substantive due process rights may have been violated.

Also, he has a fundamental right to free speech. The deprivation of his liberty interest (custody of his child) appears to have resulted directly from the content of his speech on the radio program - based on the timing of the CPS's removal and the reason given by CPS.