On August 16, 2022, a Fourth Circuit panel for the United States Court of Appeals ruled in Williams v. Kincaid that gender dysphoria qualifies as one of the disabilities listed under the Americans with Disabilities Act (ADA). While this recent decision has only just influenced a handful of states under the Fourth Circuit, the larger impact is clear: Transgenderism could now be considered an ADA disability in lawsuits for employer disability discrimination across the nation. 

What is Gender Dysphoria?

According to the American Psychiatric Association (APA), gender dysphoria refers to psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity.  In 2012, the American Psychiatric Association removed the term “Gender Identity Disorder” (GID) in the wake of new research in favor of “gender dysphoria” with the aim of removing the stigma many transgender people face with labeling their experiences as a “disorder.” While this change was an important step for many among the community, the APA has noted that many transgender advocates have viewed the removal of “disorder” as a barrier to accessing transgender-related medical care.

The ADA & Recent Law

The ADA requires a physical or mental impairment to substantially limit a major life activity for a condition to be considered a disability. 42. U.S.C. § 12102(1)(A)  Further, the ADA prohibits public entities from discriminating against, or excluding from participation in the benefits of services, programs, and activities, any qualified individual with a disability. 42 U.S.C. § 12132. Today, federal courts have increasingly taken the stance that gender dysphoria meets the criteria laid out by the ADA for a disability and is therefore afforded protection under anti-discrimination laws.

The first case to declare that gender dysphoria could be considered a disability under the ADA was in the 2017 federal case of Blatt v. Cabela Retail Inc. Early federal cases on the issue of gender dysphoria hinged on the ADA’s physical impairment language in 42 U.S.C. § 12102 which specifically excludes gender identity disorders not resulting from physical impairments. However, as case law has developed, gender dysphoria clearly does not fall under the category of “gender identity disorder” excluded for purposes of disability. While the landmark U.S. Supreme Court decision in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020) made strides when the Court ruled that firing an individual for being transgender in the work place was discriminatory, and thus prohibited by law, the decision was based on Title VII of the Civil Rights Act of 1964. Title VII forbids sexual orientation and gender identity discrimination and harassment in employment while the ADA provides protection from discrimination in the work place based on physical or mental disability. The expansion of the finding under the ADA in conjunction with protections already present in Title VII provides greater protection under the law for transgender persons in the realm of employment.

Williams v. Kincaid challenged the practice at a Virginia State correctional institute of placing Kesha Williams, a transgender woman, in the men’s general prison population. The court found that certain care and accommodations related to William’s gender dysphoria were denied as a result of her placement with the male population. The reasoning behind the decision in Williams was that the distinction between the now-rejected “gender identity disorder” by the APA and “gender dysphoria” differed dramatically as gender dysphoria may result in physical impairments like intense anxiety or depression. The Equal Employment Opportunity Commission (EEOC) has defined “physical impairments” as “any physiological disorder or condition…affecting one or more body systems, such as neurological…and endocrine.” 28 C.F.R. § 35.108(b)(1)(i). This interpretation led to the conclusion in Williams that gender dysphoria is a condition warranting disability and therefore protection against discrimination under the ADA.

How Are Employers Tied Into This?

The court in Williams dealt with an issue arising out of the realm of local and state government under the Title II of the ADA.  Although Title II specifically prohibits discrimination of persons with disabilities by public entities, employers should be advised that Title I applies the same protections surrounding disability to employees in private companies and organizations. Title I forbids any discrimination of an individual with a disability regarding job application procedures, hiring, advancement, firing, employee compensation, job training, or other conditions by covered entities. 42 U.S.C. § 12112(a). The term “covered entities” is broadly defined as any employer, employment agency, labor organization, or joint labor-management committee. It is equally relevant that the EEOC has specifically declared that job discrimination against people with disabilities is illegal if practiced by private employers, not just state and local governments (U.S. Equal Employment Opportunity Commission). Titles I, II, and III of the ADA are all codified in Title 42, chapter 126, of the United States Code and can be found at www.ada.gov. In short, employers will be expected to follow the law as it develops and provide accommodations based on the qualifying disability of gender dysphoria under the ADA.

What Employers Need to Know

As this area of law develops, employers should be aware of what constitutes as “reasonable accommodations” for transgender individuals. Employers will need to stay up-to-date on new requirements for disability interpreted by courts under the ADA to ensure legal guidelines and employment practices are followed. The EEOC lays out the following as reasonable accommodations for qualified applicants with disability:

• Providing or modifying equipment or devices
• Job restructuring
• Part-time or modified work schedules
• Reassignment to a vacant position
• Adjusting or modifying examinations training materials, or policies
• Making the workplace readily accessible to and usable by people with disabilities.

More specifically, the National Center for Transgender Equality lists ensuring restrooms or other facilities consistent with an individual’s gender identity as an appropriate accommodation. Further, reasonable accommodations for restroom access may not limit an individual with gender dysphoria to using a specific restroom or a restroom located at unreasonable distances from the individual’s office or work area. Additional anticipated accommodations may take the form of a modified work schedule or allowing an employee a leave of absence for medical procedures involving gender reassignment or therapy.

Finally, employers should expect to take note of their office and work place culture given these recent changes in the law as to not violate Title VII either. The EEOC states that the intentional and repeated misuse of pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment under Title VII. While the law does not prohibit simple teasing, offhand comments, or isolated incidents, harassment becomes unlawful when it is so frequent that it creates a hostile work environment or results in adverse employment decisions like firing or demoting. Private businesses may want to consider updating their human resource policies if they find them to be outdated as a hostile work environment and lack of accommodations for an employee could find an employer facing both a Title VII and ADA action. 

Some Takeaways

While the decision in Williams is new at the time of the creation of this article, it follows in the wake of several landmark decisions by federal courts on gender dysphoria and its status as a disability under the ADA. As legal precedent has become solidified, more federal and state courts are sure to follow. Under the U.S. Equal Employment Opportunity Commission, employers are required to provide reasonable accommodations to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship requiring significant difficulty or expense. Employers and hiring agencies should expect to contemplate additional workplace accommodations for transgender employees to satisfy new law on anti-discriminatory practices in the work place.  

References

1. https://psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria (APA)
2. https://www.eeoc.gov/laws/guidance/your-employment-rights-individual-disability#:~:text=Under%20the%20ADA%20%2C%20you%20have,even%20if%20you%20don’t.
3. https://transequality.org/know-your-rights/employment-general?gclid=EAIaIQobChMIxPWEvorR-QIV0dSzCh2A6Qa6EAAYBCAAEgKi2PD_BwE
4. https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination
5. https://www.ada.gov/pubs/adastatute08.pdf