Gender Dysphoria Covered by ADA Protections
Is Gender Dysphoria a disability for the purposes of the Americans with Disabilities Act (ADA)? The Fourth Circuit says Yes.
Kesha Williams, a transgender woman (a biological man who identifies as a woman), was arrested and thereafter incarcerated in a women’s prison. During a medical exam, Williams disclosed to the prison nurse that she has male genitals. Williams was then sent to the men’s prison pursuant to prison policy that “[m]ale inmates shall be classified as such if they have male genitals.” Williams served the remainder of her sentence in the men’s prison.
While in the men’s prison, Williams endured “persistent and intentional misgendering” and harassment from prison deputies and inmates. Williams also accused the prison of failing to provide her medication and reasonable accommodations to shower alone and be searched by female guards. The Fourth Circuit addressed all of Williams’s claims, but at the center of this dispute was a major question: is gender dysphoria covered by the Americans with Disabilities Act (ADA)?
The Americans with Disabilities Act prohibits public entities from discriminating against or excluding from participation in the benefits of services, programs, and activities any qualified individual with a disability.” Disability is defined as “a physical or mental impairment that substantially limits one or more major life activities.” The ADA excludes from its definition of disability “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments [and] other sexual behaviors.”
Williams argued her gender dysphoria is a disability and is distinct from any ADA exclusions. In contrast, Kincaid, a defendant in the case, argued gender dysphoria is a “gender identity disorder,” and thus, excluded from the ADA. The Fourth Circuit disagreed with Kincaid and decided “gender dysphoria” is distinct from “gender identity disorders.”
The court reached this conclusion by trying to discern what gender identity disorders meant at the time of the ADA’s enactment. Naturally, this led the court to the official dictionary of disabilities: The Diagnostic and Statistical Manual of Mental Disorders (DSM).
The majority focused on the DSM’s change from “gender identity disorders” to “gender dysphoria” in 2013. The change, they reasoned, was not in name only. Rather, the change was due to new clinical criteria; namely, “gender dysphoria” requires “clinically significant distress.” On top of it all, the court opined, Congress gave direct instructions to broadly interpret the ADA. In summary, the majority decided “gender identity disorders” are an “obsolete diagnosis focused solely on cross-gender identification,” whereas gender dysphoria is a new diagnosis that focuses on dysphoria and distress.
The Fourth Circuit ruling is the first time a federal appellate court has addressed this question. Time will tell whether other circuits follow suit and expand the ADAs application. Regardless, employers across the country should consult with an attorney when asked for an accommodation involving gender dysphoria.
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