Fourth Circuit Recognizes Gender Dysphoria May be Protected Under the ADA

December 20, 2022

By: Stephen B. Stern

    In Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022), the United States Court of Appeals for the Fourth Circuit held that gender dysphoria may be a disability that is protected under the Americans with Disabilities Act (“ADA”).

    In Williams, Kesha Williams was a transgender woman who was incarcerated at the Fairfax County Adult Detention Center.  She was initially assigned to women’s housing, but she was moved to men’s housing after deputies learned she was transgender.  She also experienced delays in receiving medical treatment for her gender dysphoria, as well as harassment by inmates and deputies that included misgendering.  Williams later filed suit asserting claims for violations of the ADA, Rehabilitation Act, and United States Constitution, as well as various common law claims.  The district court dismissed Williams’ complaint on a motion to dismiss.  Specifically, with respect to the ADA and Rehabilitation Act claims, the district court held that gender dysphoria is not a disability under the ADA because “it is an identity disorder not resulting from physical impairments.”  Williams appealed to the Fourth Circuit.  This post will address only the ADA and Rehabilitation Act claims, which the Fourth Circuit analyzed together because, as the court noted, both “statutes provide identical protections with respect to the matters at issue in this case.”

    The Fourth Circuit started its analysis by noting the ADA defines “disability” broadly to include “a physical or mental impairment that substantially limits one or more major life activities of [an] individual.”  Sheriff Kincaid (the defendant/appellee) did not dispute that gender dysphoria satisfies the definition of disability.  The Sheriff, however, argued that gender dysphoria falls within the exclusions from the definition of “disability” under the ADA and, therefore, Williams was not protected by the statute.  In this regard, the ADA specifically excludes from the definition of “disability” “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders,” among other conditions.

    First, the court analyzed whether gender dysphoria qualifies as a “gender identity disorder” (because, if it did not, it would fall outside the exclusion and be protected by the ADA).  The court noted that the ADA does not define “gender identity disorder” and, as a result, it had to examine the meaning of the ADA’s terms at the time of its enactment.  To this end, the court concluded that, in 1990, at the time the ADA was adopted, “gender identity disorders” did not include gender dysphoria.  In fact, according to the court’s research, in 1990, “the medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition.”  Rather, the medical community recognized a class of disorders it described as “gender identity disorders.”  In 1990, according to the Diagnostic and Statistical Manual of Mental Disorders (“DSM”), the “essential features” of a “gender identity disorder” were “an incongruence between assigned sex . . . and gender identity.”  In other words, being transgender in 1990 meant having a gender identity disorder that constituted a mental illness.  

     The Fourth Circuit proceeded to explain that advances in medical understanding led to a different outcome in 2013, as the American Psychiatric Association (“APA”) removed “gender identity disorders” from the DSM and added gender dysphoria.  The DSM defined “gender dysphoria” as ‘“the clinically significant distress’ felt by some of those who experience ‘an incongruence between their gender identity and their assigned sex.’”  The DSM further explained that such distress may result in intense anxiety, depression, suicidal ideation, and even suicide.  In other words, under the current DSM, if a transgender person does not experience “clinically significant distress,” the transgender person could not be diagnosed as having gender dysphoria.  According to the Fourth Circuit, the APA’s “removal of the ‘gender identity disorder’ diagnosis and the addition of the ‘gender dysphoria” diagnosis to the DSM-5 reflected a significant shift in medical understanding[,]” with the current understanding of gender dysphoria focusing not on identity per se, but on the clinical problems that may be associated with the condition.  Thus, the court concluded that gender dysphoria does not constitute a “gender identity disorder” and, therefore, gender dysphoria is not excluded from the definition of “disability” under the ADA.

    Next, the court analyzed whether Williams’ secondary argument that, even if gender dysphoria and gender identity disorders are not distinct (which the court held they were), her gender dysphoria did not preclude her from seeking the protections of the ADA because her gender dysphoria resulted from physical impairments.  To this end, the Sheriff argued that Williams did not allege her gender dysphoria resulted from physical impairments and, therefore, she was still subject to the exclusion from the definition of disability.  The court disagreed with the Sheriff, finding that Williams alleged that her medical treatment for gender dysphoria “consisted primarily of a hormone therapy, which she used to effectively manage and alleviate the gender dysphoria she experienced.”  Williams further alleged that her hormone treatment enables “feminization or masculinization of the body” and, without her treatment, she experienced “emotional psychological, and physical stress.” (emphasis added by the court).  According to the court, these allegations were sufficient to raise a reasonable inference that Williams’ gender dysphoria results from a physical impairment and, therefore, even if the court did not make its initial ruling, her condition would not fit within the exclusion from the definition of disability under the ADA.

    For these reasons, the Fourth Circuit reversed the district court’s dismissal of Williams’ claim.

    The Fourth Circuit’s decision in Williams is significant because it clarifies that transgender individuals may be protected under the ADA for conditions related to their transgender status.  While this decision arose in the context of a public accommodation in a prison setting, this decision will have ramifications for employers, as the definition of disability under the ADA applies not only in the public accommodation context, but in the employment context as well.  Employers will need to treat transgender individuals with associated medical conditions accordingly under the ADA.