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Labor Law

Labor Law: Gender dysphoria can be a disability under ADA

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RTD Metro Business law columnist, Karen Michael.

In a case involving a former inmate in a Fairfax County Adult Detention Center, the Fourth Circuit Court of Appeals ruled in a 2-to-1 decision that “gender dysphoria” can be a disability, and thus not excluded from the 1990 Americans with Disabilities Act.

According to the case, Kesha Williams is a “transgender woman with gender dysphoria” who spent six months incarcerated in the Fairfax County Adult Detention Center. Prison officials placed her in male housing after realizing she had male genitalia. Following her release, she sued the prison and prison officials alleging a variety of harm including delay in medical treatment, harassment and misgendering.

This case is relevant to employers due to how the court interpreted the ADA, because the court’s interpretation applies to transgender employees with a disability working for an employer covered by the ADA (those who employee 15 or more employees) in Virginia and other jurisdictions covered by the 4th Circuit.

The ADA defines disability, including in the employment context, as “a physical or mental impairment that substantially limits one or more major life activities of such individual.”

When passed, the ADA expressly excluded certain conditions from coverage of the law, including, “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders,” as well as “compulsive gambling, kleptomania, ... pyromania; or ... psychoactive substance use disorders resulting from current illegal use of drugs.”

The district court initially dismissed the case because it concluded that “gender identity disorder” was expressly excluded from coverage under the ADA, and therefore Williams could not prevail under the law.

On appeal, the Fourth Circuit reversed the decision after analyzing the differences in the terms “gender identity” and “gender dysphoria.”

The court reasoned that “in 1990, the gender identity disorder diagnosis marked being transgender as a mental illness.” The term “gender identity,” was replaced by a new definition of “gender dysphoria” defined as “’clinically significant distress’” felt by some of those who experience ‘an incongruence between their gender identity and their assigned sex,’” according to the court’s opinion.

The court held, “Put simply, while the older DSM pathologized the very existence of transgender people, the recent DSM-5’s diagnosis of gender dysphoria takes as a given that being transgender is not a disability and affirms that a transgender person’s medical needs are just as deserving of treatment and protection as anyone else’s.”

Because of this analysis, the court reasoned that “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.”

The court also concluded that excluding from ADA protection both “gender identity disorders” and gender dysphoria could discriminate against transgender people as a class, implicating the Equal Protection Clause of the 14th Amendment.

Employers should not assume that a transgender person has a disability simply by virtue of being transgender. Employers need to be careful not to regard a transgender person of having a disability.

A transgender person has a disability, according to the court, only if the person is diagnosed with “gender dysphoria” and has or is experiencing “clinically significant distress’” due to “an incongruence between their gender identity and their assigned sex.”

If an employee seeks a reasonable accommodation, employers should treat the process as any other ADA accommodation request — engage in the interactive process, obtain medical documentation to determine the disability and accommodation needs, and provide reasonable accommodations unless doing so creates an undue hardship.

Under a separate Virginia law passed in 2021, Virginia employers which employ more than five employees must engage in a good faith and timely interactive process after an employee makes a request for reasonable accommodation. Virginia employers must also “post in a conspicuous location and include in any employee handbook information concerning an employee’s rights to reasonable accommodation for disabilities. Such information shall also be directly provided to (i) new employees upon commencement of their employment and (ii) any employee within 10 days of such employee’s providing notice to the employer that such employee has a disability.”

Whether gender dysphoria would be a disability under the Virginia law has not been evaluated by the court, but employers should assume it is covered and properly engage in the interactive process upon being aware of the need for a reasonable accommodation.

Transgender applicants and employees also have a right to not be discriminated or harassed under Title VII of the Civil Rights Act on the basis of sex according to a 2020 Supreme Court opinion and the Virginia Human Rights Act.

Karen Michael is an attorney and the president of Richmond-based Karen Michael PLC and author of “Stay Hired.” She can be reached at stayhired@stayhired.net.

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