Fourth Circuit Holds That Gender Dysphoria May Be a Protected Disability Under the ADA

In a case of first impression arising under the ADA’s public/government services provisions (Title II), the Fourth Circuit Court of Appeals in Williams v. Kincaid has ruled that gender dysphoria is a disability protected by the Americans with Disabilities Act.

What is Gender Dysphoria? 

Gender dysphoria is a condition where an individual experiences clinically significant distress from their sexual anatomy such as genitalia, facial hair, voice, or other physical aspects. The distress typically arises when an individual’s sexual characteristics are incongruent with the individual’s gender identity. Without treatment (such as hormone therapy, surgery, etc.) the distress of gender dysphoria can lead to depression or anxiety, especially if aggravated by discrimination, harassment, or social ostracization.

Case Background

When Kesha Williams, a transgender woman, was incarcerated for six months in a Virginia jail, she was initially assigned to a female housing unit based on her outward appearance. When a prison nurse discovered Williams was transgender, however, she was reassigned to male housing.

Once reassigned, Williams was subjected to harassment from inmates and guards and was initially denied hormone replacement therapy (HRT), which she had taken for 15 years. Following the end of her incarceration, Williams filed suit under, among other statutes and theories, Title II of the ADA alleging the prison failed to accommodate her gender dysphoria by(1) not placing her in female housing and (2) failing to provide her with HRT.

Holding 

The Fourth Circuit held that gender dysphoria is a disability under the ADA’s familiar definition of a “physical or mental impairment that substantially limits one or more major life activities.”

The Court reasoned that because of the substantial advancement in medical and psychiatric knowledge, the ADA’s 1990 amendment excluding “gender identity disorder” as a disability could not be construed to also include the modern diagnosis of “gender dysphoria.” Citing the Congressional mandate to interpret the definition of disability broadly, the Court found that when gender dysphoria results in physical distress or requires the use of a physical treatment, it might constitute a protected disability. In short, gender dysphoria can sometimes be a mental or physical impairment that substantially limits one or more of life’s major activities. Accordingly, it may sometimes fall under the protection of the ADA.

The Bottom Line

Even though this is a case of first impression arising under Title II of the ADA, which addresses disability discrimination in public services, employers should expect to begin seeing ADA accommodation requests from employees who are experiencing gender dysphoria. Employers are already prohibited from discriminating against transgender employees under Title VII and may now be required to offer accommodations in some circumstances. This case suggests at least two scenarios employers might face: employees requesting leave to seek gender-affirming treatment, such as surgery, or employees seeking to use certain gendered facilities.

The legal landscape regarding transgender rights is rapidly changing at the state and Federal level–many states and municipalities are expanding trans rights, while other states are taking a different approach. Williams illustrates an example of where federal law is changing as well. LGBTQ diversity and inclusion programs, along with revised policies and proactive planning, can help keep employers from scrambling when confronted with their first gender-dysphoria accommodation request.

Should you have any questions please contact Jakob Williams or any other member of Clark Hill’s Labor and Employment team.

The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.