In a case of first impression, the U.S. Court of Appeals for the Fourth Circuit recently held in Williams v. Kincaid that individuals with gender dysphoria may be protected under the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973.
The ADA prohibits discrimination against people with disabilities in employment, public services and transportation, public accommodations, and telecommunication services. The ADA defines “disability” to include “a physical or mental impairment that substantially limits one or more major life activities of such individual.” However, the ADA explicitly excludes the following from the definition of “disability”: “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”
Kesha Williams was an incarcerated transgender woman with gender dysphoria. She is recognized as a female by her home state of Maryland, which issued her a driver’s license with that designation. For fifteen years prior to her incarceration, Williams had received hormone therapy in the form of a daily pill and biweekly injections.
Williams was incarcerated in the Fairfax County (Virginia) Adult Detention Center for six months in late 2018 and early 2019. At the outset of Williams’s incarceration, she was initially assigned to housing on the women’s side of the facility. During her preliminary medical evaluation, however, she was labeled “male” after informing the nurse that she was transgender, experienced gender dysphoria, and received hormone medical treatment for her gender dysphoria. The nurse changed Williams’s prison records, including her housing assignment, and prison deputies required Williams to live on the men’s side of the prison. As a result of being placed in male inmate housing, Williams “experienced delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional misgendering and harassment by prison deputies.”
After her release, Williams filed a lawsuit asserting violations of the ADA, the Rehabilitation Act, the U.S. Constitution, and Virginia law. The defendants moved to dismiss, arguing that gender dysphoria was not a recognized disability under the ADA. The district court agreed, and dismissed the ADA and Rehabilitation Act claims. Williams appealed.
The Fourth Circuit’s Decision
On appeal, the Fourth Circuit disagreed with the district court and reversed the dismissal of the ADA and Rehabilitation Act claims. In support of reversal, the Fourth Circuit began by acknowledging that the ADA does not define “gender identity disorders.” To determine whether “gender identity disorders” includes gender dysphoria, the Fourth Circuit relied in part on the Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013), which, the court noted, “defines ‘gender dysphoria’ as the ‘clinically significant distress’ felt by [individuals] who experience an incongruence between their gender identity and their assigned sex.’” The Fourth Circuit reasoned that gender dysphoria was a diagnosable condition whose definition was much narrower than, and separate from, the definition of “gender identity disorder.”
The Fourth Circuit also noted that “even if ‘gender dysphoria’ and ‘gender identity disorder’ were not categorically distinct … [Williams’s] gender dysphoria nevertheless [fell] within the ADA’s safe harbor for ‘gender identity disorders … resulting from physical impairments.’” (Emphasis in original.) Thus, the Fourth Circuit held that Williams could potentially establish that her gender dysphoria “resulted from a physical impairment” and therefore fell outside the ADA’s exclusions.
The Fourth Circuit found that Williams had “alleged sufficient facts to render plausible the inference that her gender dysphoria ‘result[ed] from physical impairments’” and was not excludable from the ADA’s coverage.
Although this case did not arise within the employment context, the holding potentially has broad implications for the employment relationship. While the court of appeals’ decision may have an immediate impact only on employers in Maryland, North Carolina, South Carolina, Virginia, and West Virginia (the states situated in the Fourth Circuit), this area of law will likely continue to be litigated. In light of the decision, employers in Maryland, North Carolina, South Carolina, Virginia, and West Virginia with employees experiencing gender dysphoria may want to keep in mind that those employees may be entitled to antidiscrimination protections found under the ADA.
When engaging in the interactive process with employees with gender dysphoria, employers in the Fourth Circuit may want to carefully consider this decision when evaluating requests for reasonable accommodation, including leaves of absence for medical treatment, and accommodation requests for pronoun use or bathroom use.