ADA Covers Gender Dysphoria, 4th Circuit Finds in First-of-Its-Kind Ruling

Author: David B. Weisenfeld

August 23, 2022

Gender dysphoria is a covered impairment under the Americans with Disabilities Act (ADA), the 4th Circuit Court of Appeals has ruled. And while Williams v. Kincaid arose out of a prison discrimination lawsuit, the opinion's in-depth analysis of the ADA has clear implications for employers and is a big win for transgender individuals.

Gender dysphoria describes the feeling of discomfort an individual may feel because their gender identity differs from their biological sex. In this case, a prisoner who identifies as a transgender woman claimed prison employees repeatedly harassed her by referring to her as a man, and requiring her to wear men's clothing and to live on the men's side of the facility.

In the first federal appellate court ruling to address this issue, the Richmond, Virginia-based 4th Circuit found that nothing in the ADA compels the conclusion that the ADA's protection excludes gender dysphoria. The court noted that it must interpret the definition of disability as broadly as the ADA's text permits.

While the ADA excludes "gender identify disorders not resulting from physical impairments," the court held there is a reasonable inference that the plaintiff's gender dysphoria results from a physical impairment. In particular, the court explained, the need for hormone therapy may well indicate that her gender dysphoria has some physical basis.

The decision also suggests that covered employers may need to grant accommodations to employees suffering from gender dysphoria, something that was denied in this case.

The 4th Circuit affects:

  • Maryland;
  • North Carolina;
  • South Carolina;
  • Virginia; and
  • West Virginia.

Issues involving transgender employees have been on the rise. In fiscal year 2021, the Equal Employment Opportunity Commission (EEOC) recovered about $9.2 million for complainants claiming discrimination based on sexual orientation or gender identity - the highest number since it began tracking the data in 2013.