OFCCP Week In Review: September 2022 | DirectEmployers Association – JDSupra – JD Supra
Tuesday, August 16, 2022: First Federal Appellate Court Rules That Gender Dysphoria May Qualify as a Disability Under The ADA
The US Appeals Court for the Fourth Circuit (Richmond) agreed with a growing number of federal district courts in ruling that gender dysphoria can qualify as a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. With this decision, the Fourth Circuit became the first federal appellate court to rule on the issue and extend the statute’s protections to transgender people suffering from gender dysphoria (Willams v. Kincaid, Case No. 21-2030).
Gender dysphoria is a health condition that manifests in clinically significant “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.” The plaintiff, a transgender woman with gender dysphoria, spent six months incarcerated in a county adult detention center in Maryland. Although prison deputies initially assigned her to women’s housing, they quickly moved her to men’s housing when they learned that she was transgender. Subsequently, she experienced delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional misgendering and harassment by prison deputies. After her release, she filed a lawsuit alleging that the county sheriff and other prison officials violated 42 U.S.C. Section 1983 by denying her rights under the ADA, the Rehabilitation Act, and other laws.
The federal District Court (the trial court) ruled that the exclusion for “gender identity disorders not resulting from physical impairments” applied to the plaintiff’s gender dysphoria, and thereby, barred her ADA claim. Reversing, a three-judge panel of the Fourth Circuit ruled, 2-1, that gender dysphoria can be a disability under federal disability discrimination law.
In a footnote, the court majority noted that the ADA and the Rehabilitation Act “provide identical protection with respect to the matters at issue” here. [Editorial Note: We add this footnote: Section 503 of the Rehabilitation Act of 1973 (applicable to covered federal contractors) contains the same substantive prohibitions and permissions as does the ADA—at least since 2007. This ADA ruling is therefore meaningful as to Section 503 analyses.]
Accordingly, for the sake of simplicity, the majority opinion combined the two statutes in its analyses and principally analyzed the ADA claim. The ADA prohibits covered employers from discriminating against – or excluding from participation in the benefits of services, programs, and activities – any qualified individual with a disability. The statute broadly defines “disability” to include “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Here, while conceding that gender dysphoria meets this definition, the defendants argued that the condition fell within the ADA’s exclusions. These exceptions to the statute’s protections include “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders.”
The majority pointed out that while the ADA may not have covered gender dysphoria when it was enacted in 1990, the medical community stopped applying “gender identity disorder” as a diagnosis in 2013. That year, the American Psychiatric Association removed the old diagnosis from its Diagnostic and Statistical Manual of Mental Disorders (DSM) and added “gender dysphoria.” “[W]hile 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,” the court wrote.
Here, the majority agreed with the plaintiff’s argument that gender dysphoria categorically is not a “gender identity disorder.” Gender identity disorder means “gender nonconformity,” whereas gender dysphoria is a clinical diagnosis that recognizes that being transgender in and of itself is not a medical condition. Instead, the medical condition is the distress caused by having a gender identity that differs from one’s sex at birth. In other words, this distress is what differentiates someone with gender dysphoria from someone with a gender identity disorder. As such, gender dysphoria is not a gender identity disorder, which means it is not excluded from the ADA, the panel majority concluded.
Moreover, even if the plaintiff’s gender dysphoria constituted a “gender identity disorder,” it resulted from a physical basis that places it outside the scope of the exclusion from ADA protection, the majority found. She alleged that the medical treatment for her gender dysphoria required hormone therapy, which she used to effectively manage and alleviate her symptoms. When the prison failed to provide this treatment, she began experiencing her symptoms again. Therefore, she presented sufficient evidence that her particular gender dysphoria resulted from a physical impairment.
As we previously reported in June, a federal trial court in Georgia ruled that a county employee medical insurance program violated Title VII on its face by denying an employee with gender dysphoria gender-affirming surgery coverage. However, in that case, the court also ruled that the employee’s ADA claim failed because she had not introduced evidence sufficient to prove that her gender dysphoria was the result of a physical impairment.