In a victory for LBGTQ+ rights, the 4th Circuit Court of Appeals in Richmond, Virginia, recognized gender dysphoria as a medical condition and determined that those suffering from it are entitled to protections under the Americans with Disabilities Act. Businesses should take note of this important legal development and the expanded protections under the ADA in the 4th Circuit as similar cases are sure to be adjudicated in halls of justice across the country.
Kesha T. Williams v. Stacey A. Kincaid et al., involved an incarcerated transgender woman and represents the first federal appeals court decision on the issue. Although not directly an employment-related ruling, the decision is recommended reading for employers on how to address requests to accommodate gender dysphoria in the workplace setting. Employers should revisit their policies and training on providing reasonable accommodations to insure compliance with the ADA.
Background of the Case
Kesha Williams, a transgender woman with gender dysphoria, was incarcerated for six months in a Fairfax County Adult Detention Center. While incarcerated, she requested that the prison authorities provide inmates suffering from gender dysphoria with “adequate and necessary” medical care. When her request for services were denied, Ms. Williams filed suit in the U.S. District Court in Alexandria, Virginia, alleging violations by prison authorities of the 14th amendment’s equal protection clause, violation of the ADA and negligence. Ms. Williams sought compensatory and punitive damages, among other requests for relief. The District Court dismissed the case finding that the complaint failed to state grounds for relief with respect to some claims and that the statute of limitations barred others. Williams appealed.
What Constitutes Gender Dysphoria?
Gender dysphoria is defined as the “clinically significant distress” felt by some people who experience “an incongruence between their gender identity and their assigned sex,” according to the American Psychiatric Association’s Diagnostic and Statistical Manual, which is quoted in the ruling. The ADA does not provide a definition for "gender identity disorders" and in fact does not specifically mention gender dysphoria.
In deciding the case, the 4th Circuit examined the definition of "gender disorder" at the time of the ADA's passage in 1990. In doing so, the Court found that gender disorders did not include gender dysphoria as it was not acknowledged as a diagnosis at that point in time. The 1990 version of the Diagnostic and Statistical Manual of Mental Disorders (DSM), defined a gender identity disorder as, "an incongruence between assigned sex and gender identity." Am. Psych. Ass'n Diagnostic and Statistical Manual 71 (3d ed., rev. 1987). This means that in 1990 transgenderism was considered a mental illness.
In 2013, the DSM removed gender identity disorders and added the diagnosis of gender dysphoria. After these changes, it was clear that gender dysphoria was defined quite differently than gender identity disorder. In particular, gender dysphoria is accompanied by "clinically significant distress." DSM-5 at 451-53.This distress can result in anxiety, depression and even suicidal thoughts or actions. Clinically, significant distress is necessary to assign a diagnosis of gender dysphoria. In addition, the Ninth Circuit has noted that the "failure to follow an appropriate treatment plan for gender dysphoria can expose transgender individuals to serious risk of psychological and physical harm." Edmo v. Corizon, Inc., 935 F.3d 757, 771 (9th Cir. 2019).
Gender dysphoria and gender identity are not interchangeable terms as they have different symptoms. Gender dysphoria is associated with a clinical problem such as significant distress. The 4th Circuit stated, "[P]ut simply, while the older DSM pathologized the very existence of transgender people, the recent DSM-5's diagnosis of gender dysphoria takes as a given that being transgender is not a disability and affirms that a transgender person's medical needs are just as deserving of treatment and protection as anyone else's." Therefore, it concluded that the ADA does exclude gender identity disorders, but not gender dysphoria because it mandates a clinical diagnosis and involves medical treatments and concerns.
Gender Dysphoria Qualifies as a Physical Impairment under the ADA
Although the court acknowledged that the ADA does not specifically define the term "physical impairments", the court reasoned that it calls on the interpreter to read it with a broad view. Further, the Equal Employment Opportunity Commission (EEOC) has produced regulations which define the term as "any physiological disorder or condition…. affecting one or more body systems, such as neurological…. and endocrine." 28 C.F.R. § 35.108(b)(1)(i).
Using the EEOC's definition, the Williams court found that gender dysphoria does in fact result from physical impairments. They noted that Williams utilized hormone therapy in the form of pills and injections to control and manage her gender dysphoria, and that she had consistently received this medical treatment for over 15 years before her incarceration. Williams brought sufficient proof that her gender dysphoria required medical treatment. She asserted that without her treatment during detention, she experienced emotional, psychological and physical distress. The court found that these allegations were sufficient to make a reasonable inference that Williams' gender dysphoria was a physical impairment.
The Impact of the Williams Ruling
In this appellate ruling, the two-to-one majority opinion said the ADA’s definition of gender dysphoria reflects “a significant shift in medical understanding” and that Ms. Williams has alleged sufficient facts to render plausible the inference that her gender dysphoria resulted from physical impairments and is covered by the ADA. In addition, the court noted that the spirit of the ADA is to provide as much protection to persons with disabilities as possible. Reading the ADA in a restrictive manner as to transgender conditions, is not in line with the underlying purpose with which the statute was written.
District court rulings have varied on the issue of ADA exclusion, and experts note the requirements for coverage under the ADA preceded the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, which barred workplace discrimination based on sexual orientation or gender identity. As Williams is the first Federal Appellate ruling on the issue, it will be noteworthy to see how this ruling is interpreted and implemented by the district courts. Likewise, given the conservative leaning nature of the 4th Circuit, the ruling may be a precursor to how other appellate courts will rule on this issue moving forward.
Key Takeaways
- Gender dysphoria qualifies as a physical impairment under the ADA.
- Excluding gender dysphoria from the ADA would discriminate against transgender people as a class.
- Employers should familiarize themselves, management and supervisors with the term gender dysphoria and be prepared to review potential accommodation requests by employees moving forward.
The attorneys at WSHB are monitoring important court decisions as well as state and federal laws in this area. Please do not hesitate to reach out to a member of our team with any questions or concerns.