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Fourth Circuit Holds the Americans with Disabilities Act Covers Gender Dysphoria

On August 16, 2022, in Williams v. Kincaid, the Fourth Circuit held that gender dysphoria can qualify as a disability under the Americans with Disabilities Act (the “ADA”).  This is the first federal appellate decision which extends the ADA’s protections to transgender people experiencing gender dysphoria and it will have a significant impact on all entities covered by the ADA, including employers (covered by Title I of the ADA), and public accommodations (covered by Title III of the ADA). Prior to this holding, several of the district courts have come down both ways on the issue.

In Williams, the plaintiff, a transgender woman who was incarcerated in a men’s facility, asserted that she was forced to wear men’s clothing, misgendered repeatedly by prison staff, denied access to medical treatment, including her hormone therapy, and harassed by other inmates.

In its decision, the Court distinguished gender dysphoria from the now-obsolete diagnosis of “gender identity disorder,” which is not covered under the ADA.  The Court looked to the DSM-5’s definition of gender dysphoria as the “clinically significant distress” felt by some who experiences “an incongruence between their gender identity and their assigned sex,” and further noted that “nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a ‘gender identity disorder’ excluded from ADA protection.” The Court also clarifies that following a shift in medical understanding, “we and other courts have thus explained that a diagnosis of gender dysphoria, unlike that of ‘gender identity disorder,’ concerns itself primarily with distress and other disabling symptoms, rather than simply being transgender.”

Furthermore, the Court agreed with Williams’ argument that even if gender dysphoria and gender identity were not categorically distinct, her gender dysphoria would nevertheless fall within the ADA’s safe harbor for “gender identity disorders . . . resulting from physical impairments.” Specifically, the Court found that, since Williams alleged that she experienced “emotional, psychological and physical distress” due to being denied hormone therapy, she had a physical basis for asserting that gender dysphoria qualifies as a disability under the ADA.

Importantly, the Court did not find, and does not suggest that being transgender is, in and of itself, a disability. Rather, it found that gender dysphoria can be disabling, and that the medical needs of transgender individuals merit protection under the ADA.

Employers and businesses that qualify as places of public accommodation under Title III of the ADA operating in the Fourth Circuit (which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia) should be sure to update their policies, practices and procedures with respect to providing reasonable accommodations to individuals to align with this decision.

New York employers and places of public accommodation should similarly note that the New York State Human Rights Law prohibits discrimination on the basis of gender dysphoria, and both the New York State and City Human Rights Law provide that the refusal to provide reasonable accommodations for persons with gender dysphoria, constitutes disability discrimination, and that harassment on the basis of a person’s gender dysphoria is harassment on the basis of disability.