A recent Statement of Interest filed earlier this week by the Department of Justice in a federal prisoner lawsuit in the United States District Court for the Northern District of Georgia should serve as an important reminder to employers and federal funding recipients that they may be required to accommodate transgender individuals under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Since the United States Supreme Court’s 2020 ruling in Bostock v. Clayton County, employers have been prohibited from discriminating against transgender individuals under Title VII of the Civil Rights Act of 1964. However, protections for transgender individuals diagnosed with gender dysphoria–defined as a “clinically significant distress or impairment in social, occupational, or other important areas of functioning” resulting from the incongruence between gender identity and assigned sex—under the ADA and Rehabilitation Act continue to be unclear. The difference as to which statute applies is meaningful because the latter two require accommodations, whereas Title VII does not. Reasonable accommodations could include allowing a transgender employee to have a name tag with their chosen, non-legal name; use the bathroom that aligns with their gender identity; or take time off for gender-affirming surgery.

Protections for transgender individuals under the ADA and Rehabilitation Act have been unclear because of an exclusion in both Acts’ definition of disability. The ADA (applicable to employers and public accommodations) and the Rehabilitation Act (applicable to federal funding recipients such as higher education institutions) both prohibit discrimination against individuals with disabilities and require entities subject to the statute to accommodate such individuals. Disability is defined as a “physical or mental impairment that substantially limits one or more major life activities” but excludes “transsexualism… [and] gender identity disorders not resulting from physical impairments” (the GID exclusion).

In Jane Doe v. Georgia Department of Corrections, a transgender prisoner alleged the Georgia Department of Corrections was violating the ADA and Section 504 of the Rehabilitation Act by refusing to provide her with medically necessary gender-affirming surgery. The United States filed a Statement of Interest arguing that the GID exclusion—which the Georgia DOC relied upon in denying the plaintiff’s request—did not apply. The United States argued that the GID exclusion applies only to exclude individuals who claim the mere fact of identifying as a different gender from one’s sex assigned at birth—that is, being transgender—is a disability. But here, the United States argued, the plaintiff was relying on her medical diagnosis of gender dysphoria.

In 2017, following the transgender v. gender dysphoria line of argument, the Federal District Court for the Eastern District of Pennsylvania in Blatt v. Cabela’s Retail, Inc., became the first court to hold a transgender individual could proceed with her ADA claim. Since the Cabela’s ruling, district courts have split on the issue while appellate courts have mostly remained silent. The only appellate court to rule on this issue has been the Fourth Circuit, which in 2022 held that gender dysphoria is not a gender identity disorder excluded by the ADA. Because the Fourth Circuit’s ruling applies only to courts in that circuit, it does not control in the Georgia DOC case.

While the Georgia DOC case is still pending, the United States’ Statement of Interest is an important reminder to employers and federal funding recipients of the need to consider reasonable accommodations when responding to complaints from transgender individuals.