Do You Know Your Obligations to Transgender Employees and Job Applicants?

Stokes Wagner

The subject of transgender Americans has been raised a lot recently, sometimes in political contexts, but regardless of the politics, it is important for employers to understand their obligations with respect to transgender employees and job applicants. On June 15, 2020, the Supreme Court held that discrimination against gay or transgender employees “simply for being homosexual or transgender” was clearly a violation of Title VII. Some localities, including New York City, have passed legislation mandating the use of employees’ chosen pronouns, and the EEOC notes that failure to do so can contribute to a hostile environment under Title VII. And the Fourth Circuit Court of Appeals recently decided that gender dysphoria, “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth,” which often accompanies transgender status, can be a “disability” under the Americans with Disabilities Act.

At the time the ADA was passed in 1990, the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM) marked being transgender as a mental illness in itself, but current versions of the DSM do not consider simply being transgender as reflective of mental illness – instead, the DSM-5 recognizes that gender identity issues can cause anxiety, depression, suicidal ideation, and even suicide. “Put simply, while the older DSM pathologized the very existence of transgender people, the recent DSM-5’s diagnosis of gender dysphoria takes as a given that being transgender is not a disability and affirms that a transgender person’s medical needs are just as deserving of treatment and protection as anyone else’s.” Williams v. Kincaid, No. 21-2030 (4th Cir. Aug. 16, 2022).

The plaintiff in Williams alleged that she suffered from gender dysphoria, and that prison officials deprived her of the hormone treatment she had been using for fifteen years, refused to acknowledge her chosen gender, and subjected her to harassment based on her transgender status. In deciding that the plaintiff’s complaint stated a cause of action under the ADA, the court noted that Congress had passed legislation in 2008 for the primary purpose of mandating that the definition of “disability” “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the [ADA’s] terms.” 42 U.S.C. § 12102(4)(A). Under these circumstances, the court held, the plaintiff should be allowed to pursue her case.

Thus, employers need to understand that 1) they are barred by Title VII from discriminating against transgender people simply for being transgender; and 2) they may be barred by the ADA and by some local legislation from interfering with a transgender employee’s ability to be treated as their chosen gender and to receive treatment for any gender dysphoria that accompanies their status. It remains to be seen how the law will continue to progress in this area.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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