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Gender dysphoria ruling creates accommodation requirement


Employers should expect an increase in employee requests to accommodate gender dysphoria after a federal appeals court held that a transgender woman with the condition is entitled to protection under the Americans with Disabilities Act.

The divided Aug. 16 ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, in Kesha T. Williams v. Stacey A. Kincaid et al., which overturned a lower court decision, was the first federal appeals court ruling on the issue.

While the case, which involved an incarcerated transgender woman, was not an employment-related ruling, it will nevertheless be applied to the workplace, experts say.

The 4th circuit covers Maryland, North Carolina, South Carolina, Virginia and West Virginia, but other appeals courts may issue similar rulings, experts say. They recommend employers examine their policies and training to be sure they are prepared to deal with the issue. 

Gender dysphoria is defined as the “clinically significant distress” felt by some people who experience “an incongruence between their gender identity and their assigned sex,” according to the American Psychiatric Association’s Diagnostic and Statistical Manual, which is quoted in the ruling.

The U.S. District Court in Alexandria, Virginia, had dismissed the case filed by Ms. Williams, a transgender woman with gender dysphoria.

Ms. Williams, who was incarcerated for six months, alleged violation by prison authorities of the 14th amendment’s equal protection clause, violation of the ADA and negligence. She asked that the defendants provide inmates with gender dysphoria with “adequate and necessary” medical care as well as for compensatory and punitive damages, among other demands.

In the appellate ruling, the two-to-one majority opinion said the APA’s definition of gender disproval dysphoria reflects “a significant shift in medical understanding” and that Ms. Williams has “alleged sufficient facts to render plausible the inference that her gender dysphoria” resulted from physical impairments and is covered by the ADA.

The dissenting opinion said that accepting Ms. Williams’ allegations as true “does not require me to turn a blind eye to the plain language of the authorities on which Williams relies.”

The ADA excludes from the term disability any “gender identity disorders not resulting from physical impairments.”

Jakob F. Williams, an associate with Clark Hill PLC in Philadelphia, said the court looked “at all the medical and psychiatric developments of the last 30 years” and found “the idea of gender dysphoria can’t be included” in exclusions to the ADA.

The ADA became law in 1990 and was amended by the Americans with Disabilities Act Amendments Act in 2008.

District courts have ruled variously on the issue of ADA exclusion, and experts note the requirements for coverage under the ADA preceded the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, which barred workplace discrimination based on sexual orientation or gender identity.

The 4th Circuit ruling was “very solid,” said George C. Morrison, a shareholder with Buchanan Ingersoll & Rooney PC in Philadelphia. “It will be interesting to see how it is now addressed in district courts, particularly those that have not addressed the issue,” he said.

However, Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina, said, “I think the majority was incorrect in that gender dysphoria is one of the gender identification disorders that would be included in the exclusions under the ADA,” she said.

The ruling may prove influential, experts say.

“The 4th Circuit tends to be a little more conservative, so it may signal that other appellate courts will rule this way,” said Yvette V. Gatling, a shareholder with Littler Mendelson PC in Tysons Corner, Virginia.

Other say there is likely to be a split in subsequent appellate court rulings on the issue, and the issue may ultimately be decided by the U.S. Supreme Court, with congressional action another possibility.

In addition, states may already have laws that would cover these cases, said Jeanne Fugate, a partner with King & Spalding LLP in Los Angeles. 

California’s Gender Non-Discrimination Act, which took effect in January 2012, for instance, protects employees from discrimination on the basis of “gender identity” and “gender expression.”

More employee accommodation requests can be expected, both within the 4th Circuit and other circuits, experts say.

Mr. Williams said employers should learn what terms such as gender dysphoria mean “and what accommodation requests might look like.”