South Carolina Lawyers Weekly
By Jason Boleman
Gender dysphoria is a covered “disability” within the Americans with Disabilities Act, or ADA, the 4th U.S. Circuit Court of Appeals has ruled in a case of first impression.
The decision in Williams v. Kincaid (VLW 022-2-204) reverses the district court and allows a transgender woman’s lawsuit against the Fairfax County sheriff and two prison officials to proceed.
The ruling makes the Fourth Circuit the first federal appellate court in the country to find that the ADA covers gender dysphoria, defined in the court’s opinion as a “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.”
U.S. Circuit Judge Diana Gribbon Motz said the court “could not adopt an unnecessarily restrictive reading of the ADA,” given that Congress expressly instructed courts to construe the act in favor of maximum protection for those with disabilities.
“To so hold would be for a court to take it upon itself to rewrite the statute in two impermissible ways: by penciling a new condition into the list of exclusions, and by erasing Congress’ command to construe the ADA as broadly as the text permits,” Motz wrote. “We cannot add to the ADA’s list of exclusions when Congress has not chosen to do so itself.”
U.S. Circuit Judge Pamela A. Harris joined Motz’s opinion, while U.S. Circuit Judge A. Marvin Quattlebaum Jr. penned a partial concurrence and dissent.
The case returns to the Eastern District of Virginia.
In a statement, the plaintiff’s attorney Joshua Erlich said, “we are excited to get back into court to vindicate Kesha’s rights.”
“Critically, this holding applies to any individual seeking accommodations for gender dysphoria, including in employment, public accommodations, and in any other context in which the ADA provides disability protections,” Erlich noted.
Background
Kesha Williams spent six months incarcerated in the Fairfax County Adult Detention Center. A transgender woman, Williams was initially assigned to women’s housing before being reassigned to the men’s section.
The reassignment came after she explained that she had not had genital surgery pursuant to a prison policy that stated “[m]ale inmates shall be classified as such if they have male genitals” and “[f]emale inmates shall be classified as such if they have female genitals.”
After being moved to men’s housing, Williams claimed she experienced delays in receiving medical treatment, including hormone medication she had been taking for 15 years for her gender dysphoria.
She further alleged harassment by other inmates and that “prison deputies repeatedly harassed her regarding her sex and gender identity.” Requests for accommodations including the ability to shower privately from the other inmates and for body searches to be conducted by a female deputy were denied.
In one instance, Williams claimed her request to have a female deputy search her during a “shakedown” was denied “despite the presence and availability of a female deputy.” Williams alleged the resulting search from a male deputy was “highly aggressive,” and caused bruising and “pain for several days,” and that the deputy “mocked Ms. Williams and made light of his actions in searching her person.”
Williams was released after six months and subsequently brought a § 1983 action against the Fairfax County sheriff and two prison officials. The complaint asserted violations of the ADA, the Rehabilitation Act, the U.S. Constitution and state common law.
At trial, the defendants moved to dismiss the complaint, contending that the ADA offered no basis for relief as gender dysphoria is not a covered “disability” under the ADA because gender dysphoria “is an identity disorder not resulting from physical impairments.”
The lower court dismissed the ADA and Retribution Act claims under this basis.
Gender dysphoria
The ADA broadly defines “disability” to include “a physical or mental impairment that substantially limits one or more major life activities of such individual.”
The sheriff did not dispute that gender dysphoria falls within that definition. Rather, he relied on the exclusions found in the statute, arguing that because the statute excludes “gender identity disorders not resulting from physical impairments” from its protections, Williams’ condition was not covered.
The district court agreed with the defendant, holding that the exclusion applied to Williams’ gender dysphoria and barred her ADA claim.
“Whether this is so constitutes a question of first impression for the federal appellate courts,” Motz noted.
Williams posed two challenges to the lower court’s holding: that gender dysphoria is not a “gender identity disorder” and that, even if it were, it “results from a physical basis that places it outside the scope of the exclusion from ADA protection.”
Motz said the court had to follow Congress’ direction and cited a 2008 amendment to the ADA instructing courts 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.”
In evaluating Williams’ first claim, Motz said the ADA does not define “gender identity disorders” — and never mentions gender dysphoria.
“Thus, although the ADA specifically lists a number of exclusions from the definition of “disability,” that list does not include gender dysphoria,” Motz wrote. “To determine whether ‘gender identity disorders’ includes gender dysphoria, we must look to the meaning of the ADA’s ‘terms at the time of its enactment.’”
In 1990, the judge said, “gender identity disorders” did not include gender dysphoria. At the time, the medical community did not acknowledge gender dysphoria as an independent condition or a subset of another condition. However, a gender identity disorder diagnosis marked being transgender as a mental illness.
As medical knowledge advanced, the American Psychiatric Association removed “gender identity disorders” from the DSM-5, and added “gender dysphoria” as a diagnosis that did not exist in 1990. That is defined as “clinically significant distress or impairment related to gender incongruence, which may include the desire to change primary and/or secondary sex characteristics.”
The “ADA excludes from its protection anything falling within the plain meaning of ‘gender identity disorders,’ as that term was understood ‘at the time of its enactment,’” Motz wrote. “But nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a ‘gender identity disorder’ excluded from ADA protection. For these reasons, we agree with Williams that, as a matter of statutory construction, gender dysphoria is not a gender identity disorder.”
Plausible inference
The court agreed that Williams alleged sufficient facts to support the inference that her gender dysphoria results from physical impairments, particularly the need for hormone treatments that she has been taking for 15 years.
“That Williams did not ‘specifically allege that her gender dysphoria is rooted in some physical component’ by using those particular words does not render implausible the inference that her gender dysphoria has a physical basis,” Motz wrote. “Williams’ complaint, as it stands, permits the plausible inference that her condition ‘result[ed] from a physical impairment.’”
Motz added that barring ADA coverage for both “gender identity disorder” as it existed in 1990 and “gender dysphoria” could run afoul of the Constitution.
“We have little trouble concluding that a law excluding from ADA protection both ‘gender identity disorders’ and gender dysphoria would discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment,” Motz wrote.
The majority opinion further states the prison’s policy of classifying detainees according to genitalia appears to violate the Prison Rape Elimination Act, which requires prisons to “consider on a case-by-case basis whether placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.”
“The binary approach … flouts the case-by-case analysis federal law requires,” Motz wrote. As such, the majority reversed the dismissal of the gross negligence claim against the sheriff.
