Fourth Circuit: ADA Protection for Gender Dysphoria

Darrell VanDeusen
Darrell VanDeusen

The issue of federal protection for gender identity was, it seemed, resolved with the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731 (2020), which held that Title VII’s definition of sex includes a prohibition of discrimination against gay and transgender individuals.  The LGBTQ community (along with many others) applauded this decision.  And it is settled law.

But are other protections available to the trans community under federal anti-discrimination laws?  In a decision from the Fourth Circuit last week, Williams v. Kincaid, 2022 U.S. App. LEXIS 22728 (4th Cir. Aug. 16, 2022), the court held that “gender dysphoria,” a DSM-5 recognized diagnosis, qualifies as a disability under the Americans with Disabilities Act (ADA).

The Diagnostic and Statistical Manual of Mental Disorders (DSM) is the handbook used by health care professionals as the guide to the diagnosis of mental disorders. It provides  descriptions, symptoms and other criteria for diagnosing mental disorders.  The current edition is the DSM-5, and when it was issued in 2013, it was the first to recognize “gender dysphoria” – a diagnosis that describes the clinically significant distress that some transgender people experience. 

The prior edition, the DSM-4, used the term “Gender Identity Disorder” to refer to transgender individuals.  Not surprisingly, many people found this assessment – that a trans individual has, by definition, a mental disorder – offensive and untrue.  The term became discredited and it is no longer used. 

Williams expands federal protection to transgender and other individuals seeking workplace and public accommodations for gender dysphoria.  The Fourth Circuit cited five district court rulings from other circuits that have reached the same conclusion. 

Williams, a prisoner, sued under Title II of the ADA, which applies to disability discrimination in the provision of government services, but the case will be the bell weather for employment cases, since the ADA goes beyond prohibiting discrimination and requires reasonable accommodations.  For an employee with gender dysphoria, that might mean leave for medical procedures or hormone therapy, as well as modifications to a company’s restrooms or other policies.

A bit of history here, because it’s interesting.  When the ADA was being debated in Congress, Senator Jesse Helms (there were a couple of other Senators too) harbored a sharp animus toward the LGBTQ community, and yes he said this on the floor of the Senate, that he feared certain individuals (those engaged in illegal activities like drug usage and those he deemed to lead “immoral” life-styles, namely, “homosexuals,” “bisexuals,” and “transvestites”) would be covered under the ADA statute.

Over the objections of many, but with a recognition that in the sausage-making of the legislative process you can’t always get what you want, but you can get what you need, Congress got national disability protection with the addition of the “Helms amendment,” created in the eleventh hour of a day-long floor debate, specifically excluding “transvestism,” “transsexualism” and “gender identity disorders not resulting from physical impairments.” 42 U.S.C. § 12211. 

What’s the takeaway?  It should be noted that not all members of the trans community now claim or will claim gender dysphoria.  Nor will all members of the trans community request that an employer make reasonable accommodations for them. But if someone does make such a request – and please remember that this approach applies to any employee who makes an accommodation request in the workplace – the employer should engage in the interactive process to determine whether the accommodation is reasonable and whether it will enable the employee to perform the essential functions of their job.




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