The Americans with Disabilities Act’s definition of “disability” expressly excludes “gender identity disorders not resulting from physical impairments.” Based on this exclusion, courts historically have held that an employee is not entitled to the protections of the ADA based on status as a transgender person. Recently, in Williams v. Kincaid, the U.S. Court of Appeals for the Fourth Circuit became the first to rule that the ADA protects individuals with gender dysphoria, a medical condition closely associated with, but not suffered by all, trans people.
The Facts
Kesha Williams, a trans woman, spent six months incarcerated in men’s housing in a Virginia adult detention center. Fifteen years before incarceration, she was diagnosed with gender dysphoria, and afterward, she received regular medical treatment for the condition, including hormone therapy.
After her release, Williams sued the detention center, asserting, among other claims, violations of Title II of the ADA, which applies to prisons and jails. Specifically, Williams alleged that she was deprived during her incarceration of medical treatment required for her gender dysphoria and that she was harassed by fellow inmates and prison employees on the basis of the condition.
The Legal Issue
In response to Williams’ lawsuit, the detention center moved to dismiss for failure to state a claim, arguing that the ADA expressly does not protect individuals with “gender identity disorders” such as gender dysphoria. Williams countered, arguing, first, that gender dysphoria is not a “gender identity disorder” as the term is used in the ADA’s carve out from its definition of “disability” and, second, that even if gender dysphoria is a “gender identity disorder” it results from a physical basis such that the carve out does not apply.
In determining the motion to dismiss, the district court adopted the detention center’s arguments and dismissed Williams’ claims. Williams appealed.
The Fourth Circuit’s Decision
On appeal, the Fourth Circuit reversed and remanded, finding that the district court erred in adopting the detention center’s expansive interpretation of “gender identity disorder.” The Court instead sided with Williams.
With respect to the ADA meaning of “gender identity disorder,” the Court found that, at the time the ADA was enacted, such disorder was a condition accepted by medical professionals, as reflected in the Diagnostic and Statistical Manual of Mental Disorders (“DSM”), as meaning “an incongruence between assigned sex (i.e., the sex that is recorded on the birth certificate) and gender identity.” In other words, the Court found that, in 1990, “gender identity disorder” was used to describe the condition of being transgender, which was viewed at the time to be a mental disorder. The Court went on to find it significant that, in 2013, the DSM was updated to remove “gender identity disorder” and that, at the same time, the diagnosis of “gender dysphoria” was added. As to the definition of gender dysphoria, the updated DSM provides that the condition is “clinically significant distress” felt by a person who experiences “an incongruence between their gender identity and their assigned sex.” On this basis, the Court concluded that gender dysphoria is not a condition encompassed by the ADA’s exclusion for “gender identity disorders.” For the Fourth Circuit, the “shift in medical understanding” was key to interpreting the ADA’s use of the language “gender identity disorders” to refer to a now-obsolete medical diagnosis.
As a second, related basis for its holding, the Court found that because Williams’ gender dysphoria as alleged had a “known physical basis” it was not possible that it came within the scope of the ADA’s definitional carve out for “gender identity disorders not resulting from physical impairments.” In this regard, the Court found sufficient Williams’ allegation that treatment for her gender dysphoria required hormone therapy—such therapy enables “feminization or masculinization of the body.”
In reaching the above conclusions, the Court noted that the ADA is meant to be construed broadly and in such a manner that it provides as much protection as is possible for otherwise qualified individuals with disabilities. The Court also based its holding on the doctrine of constitutional avoidance, finding that its interpretation of the ADA’s reference to “gender identity disorders” avoided the need to determine whether the exclusion rendered the statute unconstitutional on equal protection grounds.
The Bottom Line for Employers
Williams v. Kincaid is not an employment case, but it has potentially far reaching implications for employers. This is because the ADA’s definition of “disability” is applicable across contexts, including employment, and the Fourth Circuit’s holding therefore is not limited to non-employment cases.
The case is binding precedent only within Maryland, North Carolina, South Carolina, Virginia, and West Virginia. But because no other circuit court has yet addressed this issue, it is possible that the decision will prove persuasive in other jurisdictions. And it adds to a growing body of case law interpreting the ADA to provide protection to those suffering from gender dysphoria. District courts in Illinois, Massachusetts, Idaho, and Pennsylvania have reached conclusions the same as or similar to that reached by the Fourth Circuit.
Employers should keep in mind that the ADA’s protections extend beyond a prohibition on disability discrimination. A qualified individual with a disability is entitled to reasonable accommodation so that the individual can perform the essential functions of her job. For a person with gender dysphoria, reasonable accommodations could include modifications of policies or practices with respect to bathroom use, use of pronouns, and use of other than legal names on employment-related records.