On August 16, 2022, the U.S. Court of Appeals for the Fourth Circuit held that gender dysphoria could qualify as a disability under the Americans with Disabilities Act (ADA). (Williams v. Kincaid, No. 21-2030 (4th Cir. Aug. 16, 2022)) According to the World Professional Association for Transgender Health Standards of Care, gender dysphoria is “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.”
A transgender woman, Kesha Williams, sued Fairfax County and several of its officers and jail personnel for violations under the ADA, the Rehabilitation Act, the Equal Protection Clause of the Fourteenth Amendment of the US Constitution and state common law, for housing her in the men’s section of the jail and limiting her access to treatment and medication for her gender dysphoria. Fairfax County argued that Ms. Williams could not seek relief under the ADA because gender dysphoria “is an identity disorder not resulting from physical impairments,” and thus not protected. Ms. Williams argued that gender dysphoria was not a gender identity disorder and qualified as a disability under the ADA. The Fourth Circuit agreed with Ms. Williams.
In its analysis, the Fourth Circuit court noted several reasons why gender dysphoria qualified as a disability under the ADA:
- In 2008, Congress broadened the definition of disability in an attempt to cover individuals “to the maximum extent permitted by the [ADA’s] terms.” 42 U.S.C. § 12102(4)(A). By broadening coverage under the ADA, Congress was also narrowing exclusions.
- The American Psychiatric Association (APA) established in its fifth edition of the Diagnostic and Statistical Manual (DSM-5), that gender dysphoria was an ailment that caused significant “discomfort or distress related to an incongruence between an individual’s gender identity and the gender assigned at birth,” and thus limited daily functions. The APA went on further to recognize that the disability was not the state of being transgender, but the results of the incongruence such as “intense anxiety, depression, suicidal ideation, and even suicide.”
- Other courts have recognized the debilitating effects of gender dysphoria and the necessity for treatment. For example, the Ninth Circuit pointed out in Edmo v. Corizon, Inc., 935 F.3d 757, 771 (9th Cir. 2019), “[f]ailure to follow an appropriate treatment plan [for gender dysphoria] can expose transgender individuals to a serious risk of psychological and physical harm.”
The Fourth Circuit’s decision is the first of its kind in finding that gender dysphoria is not precluded from protection under the ADA. Even though the Fourth Circuit’s decision did not arise in the employment context, the court’s interpretation of the ADA to cover gender dysphoria will also apply to employers. Employers, even those with employees outside the Fourth Circuit’s jurisdiction, should reassess their current policies and practices to ensure they are not excluding transgender individuals from the protections of the ADA. For example, companies should inform HR professionals and others who handle requests for accommodation to engage in the interactive process with transgendered employees suffering from gender dysphoria who request an accommodation (and not automatically deny the request because they take the position it is not a covered disability under the ADA).