First time: Gender dysphoria recognized as a disability

The 4th Circuit is the first federal appeals court (on a 2-1 vote) to recognize gender dysphoria as a disability. Williams v. Kinkaid (4th Cir 08/16/2022) [PDF].

The case involves a person incarcerated in a county jail, yet this has a message for employees and employers because the relevant statutory language is identical.

Kesha Williams, a transgender woman with gender dysphoria, spent six months incarcerated in the Fairfax County Adult Detention Center. According to her complaint, prison deputies initially assigned her to women’s housing, then quickly moved her to men’s housing when they learned that she was transgender. There, she claims she experienced delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional misgendering and harassment by prison deputies.

The Americans with Disabilities Act (ADA) specifically excludes "transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders."

The trial court held that the exclusion for “gender identity disorders not resulting from physical impairments” applied to Williams’ gender dysphoria and barred her ADA claim, and dismissed the ADA and Rehabilitation Act claims. The 4th Circuit disagreed.

The 4th Circuit described a shift in medical understanding, explaining 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. Thus, "as a matter of statutory construction, gender dysphoria is not a gender identity disorder."

The court also found that Williams' "gender dysphoria nevertheless falls within the ADA’s safe harbor for 'gender identity disorders . . . resulting from physical impairments.'" "Williams’ complaint, as it stands, permits the plausible inference that her condition 'result[ed] from a physical impairment.'"

The dissent agreed with the trial court – saying that "since 'gender identity disorders not resulting from physical impairments' are excluded from the ADA, the district court appropriately dismissed Williams’ ADA claim."