Gender Dysphoria Constitutes a Disability Under the ADA, According to the Fourth Circuit
The U.S. Court of Appeals for the Fourth Circuit has ruled that gender dysphoria, a medical condition defined in the DSM-5 as “clinically significant distress or impairment related to gender incongruence, which may include desire to change primary and/or secondary sex characteristics[,]” can constitute a disability under the Americans with Disabilities Act (“ADA”). The decision substantially alters the legal landscape under the ADA, as “gender identity disorders” are expressly excluded from the definition of disability under the ADA.
Background. The extent of workplace protections for transgender workers has evolved rapidly over the past decade. Gender identity, a protected characteristic under many states’ laws, was in a state of limbo under Title VII until the Supreme Court confirmed in 2020 in Bostock v. Clayton County that Title VII’s prohibition on sex discrimination extends to discrimination based on sexual orientation and gender identity. The Equal Employment Opportunity Commission and the Occupational Safety and Health Commission have opined on employers’ obligations when it comes to restroom usage by transgender employees. The Department of Justice has filed statements of interest in cases involving transgender employees’ workplace rights. In several cases, transgender employees have asserted claims of disability discrimination and rights to reasonable accommodations, but the focus had largely been on anti-discrimination statutes prohibiting sex discrimination.
In Williams v. Kincaid, the plaintiff had been incarcerated in a Fairfax, Virginia detention center. She was born male but identified as female, and had been taking hormone therapy medication for fifteen years prior to her incarceration. Upon her incarceration, she was initially assigned to the women’s side of the prison, but when the prison discovered that she “retained the genitalia with which she was born[,]” she was reassigned to the male side of the prison pursuant to prison policy. She was allegedly subjected to harassment and denial of medication and various requested accommodations during her incarceration, which became the subject of the lawsuit. Williams sued the prison and several other defendants for violations of the ADA, among other claims.
The Court’s Ruling. The Fourth Circuit began its discussion with the ADA, which defines “disability” very broadly, noting that it includes a carveout excluding from the definition of disability “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders,” as well as “compulsive gambling, kleptomania, . . . pyromania; or . . . psychoactive substance use disorders resulting from current illegal use of drugs.” (emphasis added).
Whether the exclusion barred the claim for discrimination based on gender dysphoria was resolved in the negative for three reasons.
The Fourth Circuit focused first on the question of whether gender dysphoria is a “gender identity disorder” as that term is used in the ADA. It looked first to the meaning of the exclusion at the time it was enacted: 1990. The Fourth Circuit noted that the version of the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) in effect at the time of enactment did not include a diagnosis of “gender dysphoria;” rather, it included a diagnosis of “gender identity disorder,” which the Fourth Circuit found “marked being transgender as a mental illness.” “Gender identity disorder” has since been removed from the DSM, and “gender dysphoria,” a different diagnosis, has been added. The distinction the Fourth Circuit found between the prior version and the current version is that while the prior version defined being transgender as a disability, the current version is limited to a subset of transgender individuals who suffer from clinically significant distress resulting from incongruence between gender identity and assigned sex. The Fourth Circuit put it succinctly, quoting the Harvard Journal on Law and Gender, “being trans alone cannot sustain a diagnosis of gender dysphoria under the DSM-, as it could for a diagnosis of gender identity disorder under [earlier versions of the DSM].” Because the current DSM diagnosis focuses on distress rather than transgender identity, the Fourth Circuit found that it falls outside the scope of the exclusion, and therefore within the scope of the definition of disability under the ADA.
Next, the Fourth Circuit focused on whether Williams’ gender dysphoria, if it were a gender identity disorder, resulted from physical impairments. The Fourth Circuit found that, although the allegations in the complaint were unclear on the point, gender dysphoria could be shown to result from physical impairments because scholars have pointed to evolving science suggesting that gender dysphoria may be driven by physical, namely hormonal and genetic, causes. The Fourth Circuit focused on Williams’ need for hormone therapy, which suggested a physical component, and it refused to permit dismissal of the complaint at an early stage before evidence could be developed on this point.
Finally, seemingly turning its prior analysis on its head, the Fourth Circuit found that because many transgender individuals likely suffer from some form of gender dysphoria, excluding gender dysphoria from the definition of disability under the ADA would exclude the class of transgender individuals and likely violate the equal protection clause of the Fourteenth Amendment, supporting the Fourth Circuit’s statutory construction that avoided this constitutional infirmity.
The opinion was not unanimous. Being careful to note that the dissenting opinion did not constitute a value judgment or policy preference in this area rife with political discord, the dissenting judge expressed that the distinction between the prior DSM diagnosis of gender identity disorder and gender dysphoria was minimal, both requiring some discomfort or distress. The dissent found the allegations in the complaint to fit within the definition of gender identity disorder as that term was defined in the prior version of the DSM in effect at the time of enactment of the ADA. As a result, the dissent stated, “linguistic drift cannot alter the meaning of words in the ADA when it was enacted. And at that time, the meaning of gender identity disorders included gender dysphoria as alleged by Williams.” Among other reasons, the dissent also found the language of the exclusion, which refers to gender identity disorders in the plural, indicates an intent to construe the exclusion more broadly rather than limiting it to a single diagnosis in the DSM.
Practical Considerations. As an area that already required careful consideration from employers, additional caution is now necessary. First, employers must recognize that transgender employees may be, but are not necessarily, disabled under the ADA. Accordingly, employers should be open to cues that transgender employees may be suffering from gender dysphoria and in need of some workplace accommodation(s). However, employers must avoid assuming all transgender employees are disabled, lest they expose themselves to a claim of discrimination based on perceived disability. Indeed, in the not-too-distant past, some took the position that transgender employees should focus their legal arguments on Title VII rather than the ADA to avoid the potential stigma resulting from characterizing non-binary gender identity with disability. (The dissenting opinion even notes the change to the DSM was driven in part by the desire to avoid the stigma associated with the use of the term disorder in the diagnosis.) Perhaps one of the most straightforward ways employers can address this legal tightrope is to simply respond to issues raised by transgender employees by asking if there is anything the employer can do to assist the employee, thus initiating a conversation that could constitute an interactive process without assuming the employee is disabled.
Second, employers confronting an employee who establishes that they suffer from gender dysphoria should be prepared to offer reasonable accommodations. While there has been debate surrounding restroom usage and pronouns, it is difficult to envision an undue hardship that would overwhelm an employee’s request to use the restroom that conforms to their gender identity and use of their preferred pronouns as a reasonable accommodation.
Third, this case offers important insights into the central role the DSM plays in courts’ analyses of health conditions under employment statutes. The DSM evolves, and related medical publications are not always in sync with the DSM. Careful employers and practitioners will consult the DSM and related publications in analyzing employee requests for accommodations or leaves of absence under health- and disability-related employment statutes.
The fourth practical consideration is one of state law: despite the fact that many states’ antidiscrimination laws are typically interpreted consistently with the ADA, there is reason to believe that the dispute between the majority and the dissent about the scope of the exception to the ADA’s protection may be immaterial to coverage under state law, at least for those states within the Fourth Circuit (i.e. Maryland, Virginia, West Virginia, North and South Carolina). State statutes may lack the carveout set forth in the ADA, meaning that employers may need to consider gender dysphoria a disability under the state statute regardless of the status of federal law (i.e., a successful appeal of the Fourth Circuit’s decision would not likely alter employers’ legal obligations under state law).