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Litigation News

Winter 2023, Vol. 48, No. 2

New Gender Frontiers for the ADA

Sara Elizabeth Costello


  • A federal appellate court has determined that gender dysphoria is a recognized disability under the Americans with Disabilities Act (ADA).
  • The court's ruling was based on the expansive definition of "disability" in the ADA and the absence of explicit exclusions for gender dysphoria.
  • This decision may lead to future litigation and potential circuit splits on whether gender dysphoria is covered by the ADA.
New Gender Frontiers for the ADA
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Gender dysphoria is a disability that can be protected under the Americans with Disabilities Act (ADA), a federal appellate court held. Williams v. Kincaid involved a transgender prisoner who alleged that prison officials violated the ADA during her incarceration. The appellate court based its ruling on the ADA’s text, which does not explicitly exclude gender dysphoria from the statute’s coverage. The court also placed importance on the ADA’s 2008 amendments which endorsed an expansive definition of “disability.”

ABA Litigation Section leaders heralded the change and agree that the appellate court correctly interpreted the ADA. But Litigation Section leaders also warn that other federal appellate courts may disagree with the Williams panel. They foresee additional litigation on this politically charged issue and predict a future circuit split. In light of the decision, Section leaders encourage employers to presume that employees’ medical conditions qualify as ADA-protected disabilities.

Whom Does the ADA Protect?

Title II of the ADA, 42 U.S.C. § 12132, prohibits public entities from discriminating against individuals with disabilities or denying them the benefits of services, programs, or activities. Under the ADA, a “disability” is “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Although the ADA defines “disability” broadly, it also contains a set of exclusions. Relevant to Williams, the statute excludes from its protections “gender identity disorders not resulting from physical impairments” and “other sexual behavior disorders.”

In 2008, after several U.S. Supreme Court decisions narrowing the scope of ADA protections, Congress amended the statute. The amendments rejected the Supreme Court’s reasoning and restored the broad definition of “disability.” Congress specified that “disability” should be interpreted “to the maximum extent permitted” and “construed in favor of broad coverage of individuals.”

Transgender Woman Housed with Male Prisoners

In Williams, the plaintiff was a transgender woman whose gender identity (female) differs from the gender (male) she was assigned at birth. In keeping with her gender identity, the plaintiff changed her name, lives as a woman, and is identified as female on her driver’s license. The plaintiff also has a medical condition, gender dysphoria, and has treated this condition with hormone therapy for 15 years. The World Professional Association for Transgender Health Standards defines “gender dysphoria” as “discomfort or distress caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.”

The plaintiff was incarcerated for six months. At first, she was assigned to the women’s housing unit. But after learning that the plaintiff was a transgender woman, prison deputies required her to live with male prisoners and made her wear men’s clothing.

Prison Officials Accused of Violating the ADA

After her incarceration ended, the plaintiff filed a Section 1983 complaint against the sheriff, prison deputy, and prison nurse, alleging violations of the ADA, as well as other statutes. According to the complaint, prison officials delayed in providing the plaintiff’s hormone medicine, harassed the plaintiff, and denied her requests to shower privately and for body searches to be conducted by female deputies.

Alleging that gender dysphoria does not qualify as a “disability” under the ADA, the sheriff’s office moved to dismiss the lawsuit based on the ADA’s exclusions. It argued that gender dysphoria “is a gender identity disorder not resulting from physical impairments” pursuant to 42 U.S.C. § 12211(b). The U.S. District Court for the Eastern District of Virginia granted the motion to dismiss, holding that the plaintiff had failed to state a claim upon which relief could be granted.

According to the trial court, the plaintiff had failed to “allege some physical impairment that resulted in her gender dysphoria.” Finding that the text of the statute was unambiguous, the trial court also held that there was no need to consider legislative history. The trial court also concluded that the plaintiff’s other claims against the sheriff, prison deputy, and prison nurse were likewise barred and dismissed the case.

ADA Covers Gender Dysphoria

On appeal, the U.S. Court of Appeals for the Fourth Circuit reversed the dismissal of the plaintiff’s claims. Noting that it was an issue of first impression for the federal appellate courts, the Fourth Circuit held that gender dysphoria is not excluded from the ADA’s protections. In doing so, the appellate court highlighted “Congress’ command to construe the ADA as broadly as the text permits.” The appellate court also concluded that the plaintiff’s claim should survive because she sufficiently alleged that her condition had a physical basis. It then remanded the case to the district court for further proceedings.

Medical Advances Render the ADA’s Exclusion Inapplicable

The Fourth Circuit first analyzed the plaintiff’s argument that gender dysphoria “categorically” is not a gender identity disorder excluded by the ADA. Because the ADA does not define gender identity disorders, the appellate court examined a medical text in use at the time of the ADA’s enactment. The court placed importance on the treatment of gender identity disorders in the 1990 version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III-R). At that time, “the gender identity disorder diagnosis marked being transgender as a mental illness,” the court summarized. However, the gender dysphoria diagnosis did not exist.

Since 1990, there have been substantial advances in medical understanding, the appellate court explained. Hence, the most recent DSM-5 removed the “obsolete” gender identity disorder diagnosis and added the gender dysphoria diagnosis, which involves “clinically significant distress.” This revision shows that there is a meaningful difference between the two terms, the Fourth Circuit concluded.

The Fourth Circuit also found support for its holding in the ADA’s 2008 amendments. Because Congress specified that the statute should be construed to provide “maximum protection” for the disabled, the appellate court declined to adopt an “unnecessarily restrictive” reading of the ADA. “We cannot add to the ADA’s list of exclusions when Congress has not chosen to do so itself,” the court explained.

Plaintiff Also Covered Because of a Physical Impairment

The Fourth Circuit also considered the plaintiff’s alternative argument that her condition is covered by the ADA because it results from a physical impairment. Given the broad scope of the ADA, the Fourth Circuit held that the plaintiff had pled sufficient facts to avoid dismissal. The Fourth Circuit acknowledged that courts do not generally have the expertise to determine the causes of gender dysphoria. Thus, it found that “at this early stage, to dismiss a case based on such ‘unknowns’ would be wholly ‘premature and speculative.’” “In particular, the need for hormone therapy may well indicate that her gender dysphoria has some physical basis,” the court held.

Dissent: “Lingual Gymnastics” Cannot Save ADA Claim

But the Fourth Circuit’s panel decision was not unanimous. The dissent argued that applying the plain language of the statute and basic principles of statutory construction should result in the dismissal of the plaintiff’s ADA claim. Like the majority, the dissent focused on the gender identity disorder exclusion and examined the meaning of this term when the ADA was enacted. After analyzing the 1990 version of the DSM, the dissent concluded that “when the ADA was signed into law, gender identity disorder was understood to include what [the plaintiff] alleges to be gender dysphoria.”

Although the dissent emphasized that it was not making a value judgment about those with gender dysphoria or the broader transgender community, the opinion included strong criticism of the plaintiff’s position. Quoting Lewis Carroll’s Through the Looking Glass, the dissent said that the plaintiff was not permitted, “like Humpty Dumpty, to use a word and declare it means just what I choose it to mean.”

The dissent also rejected the plaintiff’s claim that her disorder resulted from a physical impairment. The plaintiff’s allegations about hormone therapy are insufficient because they concern a medical treatment—not a physical impairment—as required by the ADA, the dissent concluded.

After the issuance of the decision, the defendants petitioned for rehearing en banc. But after a close vote, the Fourth Circuit denied the petition for rehearing.

Section Leaders Agree with the Fourth Circuit’s Conclusion

“Whether you look at the object and purpose of the ADA or adopt a more textualist approach, it is clear that the Fourth Circuit panel reached the correct conclusion,” posits Nicholas Brancolini, Beverly Hills, CA, cochair of the Section’s LGBT Law & Litigator Committee. The plaintiff’s “mistreatment was in direct conflict with the ADA’s goal,” he elaborates. Further, “the defendants relied on ADA exclusions which do not include gender dysphoria,” he explains.

The plaintiff may have also benefited from the procedural posture of the case on appeal. “The circuit was reversing a motion to dismiss, so there was a very low threshold for the plaintiff to overcome,” notes Rebecca Sha, Jefferson, LA, cochair of the Section’s Diversity, Equity & Inclusion Committee. Additionally, “the ADA amendments really did expand the definition of disability, and the appellate court was dealing with an exclusion in a statute whose purpose is very broad,” Sha maintains. Ultimately, “the combination of the two—the procedural posture and the ADA amendments—led to the Fourth Circuit’s ruling,” she contends.

The ADA amendments also likely had a significant impact on this outcome. “Congress’s 2008 amendments to the ADA explicitly called for the broadest construction of the definition of disability,” Brancolini notes. “If there is any doubt, you have to find that the ADA covers a disability,” agrees Sha.

More Litigation Expected over Gender Dysphoria

The Fourth Circuit pointed out that it was the first federal appellate court to examine whether the ADA covers gender dysphoria. But U.S. District Courts for the Southern District of Illinois, District of Massachusetts, District of Idaho, and Eastern District of Pennsylvania have likewise held that gender dysphoria is protected by the ADA. Contrastingly, U.S. District Courts for the Southern District of Ohio and Middle District of Georgia have concluded that gender dysphoria is excluded from the ADA’s definition of disability.

“This is an increasing area of litigation, and a growing number of district court decisions are coming in on it,” observes Sha. Section leaders predict that this trend will continue and that more circuit courts will weigh in on whether the ADA applies to gender dysphoria. The Fourth Circuit is “taking a leading role, and certain circuits will follow suit,” Sha anticipates.

But other federal appellate decisions do not necessarily mean legal harmony. “While some circuits may follow suit, I suspect there are a number of rightwing activist circuits, like the Fifth Circuit, which will relish the opportunity to split from the Fourth Circuit’s decision,” Brancolini remarks. “Rightwing activist judges have demonstrated an interest in limiting the rights of transgender folks by judicial fiat,” he asserts. “I suspect a number of rightwing circuits feel confident that a circuit split provides the conservative supermajority on the U.S. Supreme Court an opportunity to endorse their conservative interpretation, regardless of the ADA’s purpose, history, or language,” Brancolini predicts.

Employers Should Assume Medical Conditions Qualify

Williams breaks new ground at the federal appellate level in finding that gender dysphoria is an ADA-recognized disability, even if other circuits might later decide otherwise. Regardless, Sha reiterates advice that she regularly gives employers: “With the ADA, it is important that employers give the benefit of the doubt to employees,” Sha counsels. “Do not question medical diagnoses. Employers should listen to what employees’ doctors are saying and engage in an interactive process with employees,” she recommends.