OFCCP Week in Review: September 2022 | Direct Employers Association

Tuesday, August 16, 2022: The First Federal Court of Appeals rules that gender dysphoria can be considered a disability under the ADA

The United States Court of Appeals for the Fourth Circuit (Richmond) agreed with a growing number of federal district courts in ruling that gender dysphoria can be considered a disability under the Americans with Disabilities Act ( ADA) and the Rehabilitation Act. With this ruling, the Fourth Circuit became the first federal appeals court to rule on the issue and extend the law’s protections to transgender people with gender dysphoria (Williams v. Kincaidcase no. 21-2030).

Gender dysphoria is a medical condition that manifests as “clinically significant discomfort or distress caused by a discrepancy between a person’s gender identity and the sex assigned to that person at birth”. The complainant, a transgender woman with gender dysphoria, spent six months incarcerated in a Maryland County adult detention center. Although prison deputies initially assigned her to female housing, they quickly moved her to male housing when they learned she was transgender. Subsequently, she suffered delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional sexual misconduct and harassment by prison deputies. After her release, she filed a lawsuit alleging that the county sheriff and other jail officials violated 42 USC Section 1983 by denying her rights under the ADA, the Rehabilitation Act, and other laws.

The federal district court (the trial court) ruled that the “gender identity disorder not resulting from physical impairments” exclusion applied to the plaintiff’s gender dysphoria and, therefore, banned his ADA application. Reversing, a panel of three Fourth Circuit judges ruled, 2-1, that gender dysphoria can be a disability under the federal Disability Discrimination Act.

In a footnote, the majority of the court noted that the ADA and the rehabilitation law “provide identical protection with respect to the matters at issue” here. [Editorial Note: We add this footnote: Section 503 of the Rehabilitation Act of 1973 (applicable to covered federal contractors) contains the same substantive prohibitions and permissions as does the ADA—at least since 2007. This ADA ruling is therefore meaningful as to Section 503 analyses.]

Thus, for the sake of simplicity, the majority opinion combined the two laws in its analyzes and primarily analyzed the ADA’s claim. The ADA prohibits covered employers from discriminating against — or excluding from participation in the benefits of services, programs, and activities — any qualified person with a disability. The law broadly defines “disability” to include “a physical or mental impairment that substantially limits one or more of such an individual’s major life activities.” Here, while conceding that gender dysphoria meets this definition, the defendants argued that the condition fell within the ADA exclusions. These exceptions to the protections of the law include “cross-dressing, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders.

The majority pointed out that while the ADA may not have covered gender dysphoria when it was enacted in 1990, the medical community has stopped applying “gender identity disorder” as diagnosis in 2013. That year, the American Psychiatric Association removed the old diagnosis from its Diagnostic and Statistical Manual of Mental Disorders (DSM) and added “gender dysphoria”. “[W]While the old DSM pathologized the very existence of transgender people, the recent DSM-5 diagnosis of gender dysphoria takes for granted that being transgender is not a disability and asserts that a person’s medical needs transgender people deserve treatment and protection just as much as anyone else. else,” the court wrote.

Here, the majority agreed with the claimant’s argument that gender dysphoria is emphatically not a “gender identity disorder”. Gender identity disorder means “gender nonconformity”, while gender dysphoria is a clinical diagnosis that recognizes that being transgender per se is not a medical condition. Instead, the medical condition is the distress caused by having a gender identity different from one’s sex at birth. In other words, this distress is what differentiates someone with gender dysphoria from someone with gender identity disorder. As such, gender dysphoria is not a gender identity disorder, which means it is not excluded from the ADA, the majority of the panel concluded.

Further, even if the applicant’s gender dysphoria constituted a “gender identity disorder”, it resulted from a physical basis which places it outside the scope of the exclusion from the protection of the ADA, concluded the majority. She alleged that medical treatment for her gender dysphoria required hormone therapy, which she used to effectively manage and relieve her symptoms. When the prison did not provide this treatment, she began to experience her symptoms again. Therefore, she presented ample evidence that her particular gender dysphoria resulted from a physical impairment.

Like us previously reported in June, a federal trial court in Georgia ruled that a county employee medical insurance program violated Title VII on its very face by denying an employee with gender dysphoria coverage for affirming surgery. gender. However, in this case, the court also ruled that the employee’s ADA application failed because she did not present sufficient evidence to prove that her gender dysphoria was the result of a physical disability. .

See also WIR: Monday, February 10, 2020: Denial of sex reassignment surgery to federal prisoner deemed cruel and unusual in violation of the 8th Amendment

Andrew B. Reiter