*Erin Turvey
I. Introduction
On August 16, 2022, the United States Court of Appeals for the Fourth Circuit issued a landmark decision extending protection under the Americans with Disabilities Act (ADA) to people with gender dysphoria.[1] Plaintiff Kesha Williams (Williams), a transgender woman diagnosed with gender dysphoria, was incarcerated for six months in the Fairfax County Adult Detention Center.[2] Williams was initially assigned to housing on the women’s side of the prison but was moved to the men’s side (pursuant to the prison’s policy which based gender classification on genitalia) after disclosing to the prison nurse that she is transgender.[3] Williams requested that the nurse retrieve the hormone medication she had brought to prison—which she had been taking for fifteen years.[4] Instead, the nurse instructed her to fill out a medical release form.[5] After the initial delay in receiving her hormone medication, Williams allegedly experienced additional delays in receiving treatment, was consistently misgendered, and was harassed by other incarcerated people and sheriff’s deputies.[6]
Following her release in May 2019, Williams brought suit against the Fairfax County Sheriff and others, claiming violations of the ADA and the Constitution.[7] The defendants moved to dismiss, arguing that the ADA offered no basis for relief to Williams because “gender dysphoria is not a ‘disability’ under the ADA.”[8] The District Court for the Eastern District of Virginia agreed with this argument and dismissed the suit.[9] In an issue of first impression for federal appellate courts, the Court of Appeals for the Fourth Circuit reversed, holding that the exclusion under the ADA for “gender identity disorders not resulting from physical impairments” did not include gender dysphoria.[10] Thus, Williams’ ADA claim was not barred.[11]
II. Exclusions Under the ADA and Ms. Williams’ Argument
The ADA provides people with a disability protection from discrimination on account of that disability.[12] Disability is defined broadly under the ADA as “a physical or mental impairment that substantially limits one or more major life activities of such individual.”[13] However, there are a number of exclusions as to what constitutes a disability under the ADA, such as “homosexuality,” “bisexuality,”[14] and “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”[15]
In her appeal, Williams challenged the District Court’s reliance on the “gender identity disorder[] not resulting from physical impairments” exclusion as a bar to her ADA claim.[16] Williams primarily argued that categorizing gender dysphoria as a “gender identity disorder[]” is inaccurate.[17] The Fourth Circuit agreed.[18]
III. Differentiating Gender Dysphoria From Gender Identity Disorders
The Fourth Circuit relied in large part on differentiating gender dysphoria from gender identity disorders to reach its conclusion that gender dysphoria is not excluded from protection under the ADA.[19] The ADA does not define gender identity disorders, nor is gender dysphoria even mentioned in the ADA.[20] Thus, the court looked to the statute’s meaning at the time of adoption.[21] The court determined that when the ADA was adopted in 1990, “‘gender identity disorders’ did not include gender dysphoria[.]”[22] Rather, gender dysphoria had not yet been recognized as a separate diagnosis.[23]
“[I]n 1990, the gender identity disorder diagnosis marked being transgender as a mental illness,” characterized by a “discordant gender identity.”[24] After significant advances in understanding, the most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), removed “gender identity disorder” and added “gender dysphoria” as a diagnosis.[25] In contrast to the focus on gender identity in the definition of the now-rejected “gender identity disorder” diagnosis, “the DSM-5 defines ‘gender dysphoria’ as the ‘clinically significant distress’ felt by some of those who experience ‘an incongruence between their gender identity and their assigned sex.’”[26]
The DSM-5’s shift in focus to “distress and other disabling symptoms”[27] that, if left untreated, could lead to “depression, substance use, self-mutilation, other self-harm and suicide,”[28] was enough for the court to hold that, “as a matter of statutory construction, gender dysphoria is not a gender identity disorder.”[29] Congress gave the courts the “express instruction that courts construe the ADA in favor of maximum protection for those with disabilities.”[30] The Fourth Circuit chose not to add to the list of exclusions that Congress made, finding instead that gender dysphoria did not fall within the statute’s exclusion for “gender identity disorders.”[31]
IV. Avoiding a Constitutional Question
In further support of its conclusion, the Fourth Circuit relied on the cannon that, if an interpretation of a statute exists which can avoid a constitutional question, that construction should be adopted.[32] Here, the constitutional question was under the Equal Protection Clause: a reading of the ADA that excluded protection of “both ‘gender identity disorders’ and gender dysphoria would discriminate against transgender people as a class.”[33] To avoid deciding whether the exclusions to ADA protection are an Equal Protection violation, the court elected to adopt the statutory construction that would notraise the constitutional question—gender dysphoria is not a “gender identity disorder[].”[34]
V. Conclusion
The Fourth Circuit’s holding has far-reaching implications, including allowing ADA violation claims for the refusal of gender-affirming care for people diagnosed with gender dysphoria in the carceral context.[35] Moreover, Maryland, Virginia, West Virginia, North Carolina, and South Carolina employers will now have to provide reasonable accommodations for employees with gender dysphoria, such as inclusive restroom access and leave for gender affirming medical treatment.[36] In a time when more than a dozen states have proposed so-called “Don’t Say Gay” bills,[37] it is imperative that more protections be extended to transgender people. While there is more to be done, the Fourth Circuit’s ruling is a promising step in the right direction.
*Erin Turvey is a second-year evening student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a teaching assistant for Introduction to Lawyering Skills/Civil Procedure I, a Law Scholar for Contracts I, a Research Assistant for Professor Tiefer, and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. After receiving her J.D., Erin hopes to work in public interest law.
[1] See Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022).
[2] Id. at 763.
[3] Id. at 764.
[4] Id.
[5] Id.
[6] Id. at 764–65.
[7] Id.
[8] Id. at 765.
[9] Williams v. Kincaid, No. 1:20-CV-1397, 2021 WL 2324162, at *2 (E.D. Va. June 7, 2021), rev’d, 45 F.4th 759 (4th Cir. 2022).
[10] Williams, 45 F.4th at 766.
[11] Id.
[12] Americans with Disabilities Act of 1990, 42 U.S.C. § 12132.
[13] 42 U.S.C. § 12102(1)(A).
[14] Id. § 12211(a).
[15] Id. § 12211(b)(1).
[16] Williams, 45 F.4th at 766.
[17] Id.
[18] Id. at 779–80.
[19] Id. at 767.
[20] Id.
[21] Id. at 766.
[22] Id. at 767.
[23] Id.
[24] Id. (quoting Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 611 (4th Cir. 2020)).
[25] Williams, 45 F.4th at 767.
[26] Id. (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 452–53 (American Psychiatric Publishing, 5th ed. 2013)).
[27] Williams, 45 F.4th at 768.
[28] Id. (quoting Grimm, 972 F.3d at 595).
[29] Williams, 45 F.4th at 769.
[30] Id. at 769–70.
[31] Id. at 769.
[32] Id. at 773–74.
[33] Id. at 772.
[34] Id. at 773–74.
[35] See, e.g., Zayre-Brown v. N. Carolina Dep’t off Pub. Safety, No. 3:22-CV-101-MOC-DCK, 2022 WL 4456268 at *1, *5 (W.D.N.C. Sept. 23, 2022).
[36] Ryan M. Bates, Fourth Circuit Holds That Gender Dysphoria is Protected Under the ADA, Nat’l L. Rev. (Sept. 14, 2022), https://www.natlawreview.com/article/fourth-circuit-holds-gender-dysphoria-protected-under-ada.
[37] “Don’t Say Gay” bills are, in general, geared towards prohibiting schools from incorporating discussion of topics such as gender identity and sexual orientation into curriculums. Dustin Jones & Jonathan Franklin, Not Just Florida. More Than a Dozen States Propose So-Called ‘Don’t Say Gay’ Bills, NPR (Apr. 10, 2022), https://www.npr.org/2022/04/10/1091543359/15-states-dont-say-gay-anti-transgender-bills. Such bills are largely seen by critics to be motivated by transphobia and homophobia. Id.
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