Fourth Circuit Holds Gender Dysphoria is a Protected Disability Under the ADA
In a recent opinion, Williams v. Kincaid (4th Cir. Aug. 16, 2022), the 4th Circuit Court of Appeals held that gender dysphoria is a covered disability under the Americans with Disabilities Act (ADA). We summarize the opinion and discuss its impact below.
Background
The plaintiff is a transgender woman who spent six months incarcerated in the men’s section of the Fairfax County Adult Detention Center. Although plaintiff was initially assigned to women’s housing, prison deputies moved her to men’s housing when they discovered she was transgender. While in detention, she experienced harassment and misgendering by prison deputies, and delays in medical treatment for her gender dysphoria. Gender dysphoria is discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth. Those suffering from gender dysphoria often benefit from medical treatment, including hormone therapy, and plaintiff had received such treatment in the form of daily medication and biweekly injections for fifteen years prior to her incarceration.
Following her release, plaintiff sued the Sheriff of Fairfax county and other prison employees asserting various claims, including violations of the ADA. The district court dismissed plaintiff’s claims on the grounds that gender dysphoria is not a protected disability under the ADA, but the plaintiff appealed.
Gender Dysphoria vs. Gender Identity Disorder
Although the ADA defines “disability” broadly, it explicitly excludes, among other things, “transsexualism . . . [and] gender identity disorders not resulting from physical impairments.” The Sheriff argued, and the district court agreed, that this exclusion applied to the plaintiff’s gender dysphoria prohibiting her ADA claim. The 4th Circuit came to the opposite conclusion by differentiating gender dysphoria and gender identity disorders, and by finding that regardless, gender dysphoria may result from a physical impairment.
First, the 4th Circuit found that the ADA did not explicitly exclude gender dysphoria. It confirmed that it excludes gender identity disorders, but it distinguished it from gender dysphoria. In reaching its conclusion, the court noted that while the Diagnostic and Statistical Manual of Mental Disorders (DSM) did not acknowledge gender dysphoria as either an independent diagnosis or as a subset of any other condition in 1990 when the ADA was enacted, the then-current version of the DSM stated that the essential feature of a gender identity disorder was an incongruence between assigned sex (i.e., the sex that is recorded on the birth certificate) and gender identity. However, advances in medical understanding led to the removal of “gender identity disorders” from the DSM-5 (published in 2013), and the addition of gender dysphoria as a recognized diagnosis. Rather than focusing exclusively on a person’s gender identity, the DSM-5 defines gender dysphoria as the clinically significant distress felt by some who experience an incongruence between their gender identity and their assigned sex. Ultimately, the court said, gender identity disorder and gender dysphoria are characterized by different symptoms, and coupled with the shift in medical understanding, and Congress’ instructions that courts construe the ADA in favor of maximum protection for those with disabilities, the ADA did not explicitly exclude gender dysphoria from its protections.
Second, the court found that even if gender dysphoria and gender identity disorder were not distinct, plaintiff had properly alleged that her gender dysphoria resulted from a “physical impairment,” which brought it once again outside of the ADA’s exclusion of “gender identity disorders not resulting from physical impairments” (emphasis added).
Why is this Opinion Important?
Williams v. Kincaid is a seminal ruling for transgender rights – expanding protections for transgender employees under the ADA, and comes on the heels of the Supreme Court’s opinion extending protections for such individuals under Title VII in Bostock v. Clayton County, Georgia. It also has significant implications for employers operating within the 4th Circuit jurisdiction, namely: Maryland, North Carolina, South Carolina, Virginia, and West Virginia. While this opinion may be appealed to the Supreme Court, employers in those states should remain proactive and engage in the interactive process with employees experiencing gender dysphoria in order to ensure ADA compliance. Further, employers outside of the 4th Circuit’s jurisdiction should also be mindful of their obligations if there are comparable state or local anti-discrimination laws that explicitly protect employees experiencing gender dysphoria (such as New York).
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