A federal appeals court this week ruled that “gender dysphoria” qualifies as a disability under the Americans with Disabilities Act (“ADA”). This decision will give broader protection to transgender and other individuals seeking workplace and public accommodations for gender dysphoria.
The lawsuit was brought by former inmate Kesha Williams, who sued a Virginia prison for violations of the ADA and other civil rights laws. Williams was born male but identifies as female. Prior to her incarceration, she was living as a woman for nearly 15 years. While incarcerated, Williams was labeled a “male” and assigned to male housing, where she says she experienced harassment by inmates and prison staff on the basis of sex and gender identity. The prison also denied her access to prescribed hormone medication for gender dysphoria.
In its ruling, the court noted Congress’ mandate to construe the definition of “disability” as broadly as the text of the ADA permits. The court went on to suggest that it takes issue with the ADA’s explicit exclusion of “gender identity disorders” as a covered disability, citing evidence of Congress’ discriminatory animus toward transgender people in the enactment of the ADA’s definition provisions. In these provisions, “gender identity disorders” are grouped with “pedophilia, exhibitionism, [and] voyeurism,” thus implicitly equating transgender individuals to criminals.
The court, however, stopped short of deciding the case on constitutional grounds (i.e., whether the exclusion of “gender identity disorders” from the ADA violated the Equal Protection Clause of the Fourteenth Amendment). Instead, the Fourth Circuit drew a sharp distinction between “gender dysphoria” and “gender identity disorders not resulting from physical impairments.” Gender dysphoria is defined by the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders as “clinically significant distress” felt by someone who experiences an incongruence between their gender identity and their assigned sex. That distress can result in intense anxiety, depression, suicidal ideation, and suicide. By contrast, the mere state of being transgender – a “gender identity disorder” – does not carry with it the same distress and other disabling symptoms. The court found, therefore, that gender dysphoria did not constitute a “gender identity disorder” and that Williams’ gender dysphoria did result from physical impairment.
As a result of this decision, entities subject to the ADA, including employers, should prepare for broader workplace protections under this law for transgender individuals and others who suffer from gender dysphoria. If they were not doing so already, employers should engage in the interactive process to determine the limitations of the gender dysphoria disability and to determine whether reasonable accommodations are appropriate. In this context, reasonable accommodations may include modifying bathroom or dress code policies, granting requests related to anxiety management, or, in some circumstances, granting limited leave or modified schedules to allow an employee to obtain medical treatment related to gender dysphoria.
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