On August 16, 2022, the U.S. Court of Appeals for the Fourth Circuit issued a landmark decision, Williams v. Kincaid, finding that the Americans with Disabilities Act (ADA) and the Rehabilitation Act1 protect individuals with gender dysphoria. This decision is the first decision by a federal appellate court on this issue.
Background
Ms. Williams, a transgender woman with gender dysphoria, was incarcerated in men’s housing in a Virginia correctional facility. Prior to her incarceration, Ms. Williams received medical treatment for gender dysphoria for 15 years, including hormone therapy in the form of a daily pill and biweekly injections. Additionally, she was recognized as female by her home state of Maryland, and the same was indicated on her driver’s license. During her incarceration, she alleged that she experienced delays in medical treatment because of her gender dysphoria, harassment by inmates, and misgendering and harassment by prison officials. After her release, Ms. Williams sued the correctional facility asserting violations of the ADA, the Rehabilitation Act, the U.S. Constitution, and Virginia state common law. After the defendant filed a motion to dismiss, the district court dismissed the ADA and Rehabilitation Act claims on the basis that gender dysphoria did not constitute a disability under the statutes.
On appeal, the defendants did not dispute that gender dysphoria met the ADA definition of a disability: “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A). Instead, the defendants argued that the ADA explicitly excluded from its statutory protections “gender identity disorders not resulting from physical impairments,” among other conditions. Williams argued that gender dysphoria was not a gender identity disorder and, even if it were, that it results from a physical basis and is thus outside the scope of the ADA exclusion. The ADA does not define “gender identity disorders.” The Fourth Circuit held that the term should be understood as it was “at the time of its enactment.”
The ADA exclusion was included with the passage of the ADA in 1990. Then, the Diagnostic and Statistical Manual of Mental Disorders (DSM) stated that gender identity disorder’s “essential feature” was “an incongruence between assigned sex (i.e. the sex that is recorded on the birth certificate and gender identity.)” At that time, the medical community did not consider gender dysphoria as its own diagnosis or a subset of another condition. The Fourth Circuit, however, noted that by 2013, “gender identity disorder” had been removed from the DSM and the diagnosis of gender dysphoria had been added. The DSM defines gender dysphoria to mean “clinically significant distress” someone may experience based on “an incongruence between their gender identity and assigned sex.”
Studies cited by the court noted that gender dysphoria is not based on transgender status alone but, rather, whether an individual experiences distress or other disabling symptoms, such as depression, substance abuse, self-mutilation, and self-harm. In other words, one could be transgender and not experience gender dysphoria. Further, the effects of gender dysphoria can interfere with a person’s social life, ability to do their job, and other essential daily functions – and failure to receive treatment can expose these individuals to risk of both psychological and physical harm. The court used this understanding to support its view that there is a physical basis to gender dysphoria.
As a result of this shift in the medical community’s understanding of gender identity versus gender dysphoria, the Fourth Circuit held that the exclusion of “gender identity disorders” from the ADA is obsolete and does not apply to gender dysphoria. The Fourth Circuit also held that Williams could potentially establish that her gender dysphoria “resulted from physical impairments” and thus fell outside the ADA’s exclusion of “gender identity disorders not resulting from physical impairments.” Specifically, the Fourth Circuit noted that Williams alleged her gender dysphoria requires hormone treatment and that, without such treatment, she experiences “emotional, psychological, and physical distress.” Notably, the decision reminds us that the ADA is meant to be construed broadly in favor of maximum protection for people with disabilities, and that exclusion of gender dysphoria was “unnecessarily restrictive.”
What Does This Mean for Employers?
The Fourth Circuit’s decision potentially has broad implications for employers in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Under this decision, employees experiencing gender dysphoria are entitled to the protections of the ADA, including reasonable accommodation. Accommodation requests for gender dysphoria could conceivably arise for restroom usage, employer-provided housing, task and shift assignments, and leaves of absence for medical treatment. In addition, employees are protected from discrimination, harassment, and retaliation on the basis of gender dysphoria under the ADA. Therefore, employers should ensure that employees with gender identity disorders are offered accommodations.
The defendants may seek U.S. Supreme Court reveiw. If the defendants do not do so, or the Supreme Court declines to hear the case, the Fourth Circuit decision will remain the law within the Fourth Circuit and may be adopted by other circuit courts. Going forward, it will be important for employers to consider this ruling when faced with participating in the interactive process and providing reasonable accommodations to employees with gender dysphoria.
Footnotes
