LGBTQIA and transgender rights have been an evolving legal issue in the United States for at least a decade. Each court case dealing with LGBTQIA and transgender rights has further evolved the conversation and has formed a precedent from which future cases are decided.
A recent Fourth Circuit decision shows that this evolution is likely to continue. In Williams v. Kincaid, Case No. 21-2030 (4th Cir. 8/16/22), the Fourth Circuit (sitting over Maryland, North and South Carolina, Virginia, and West Virginia) held that “gender dysphoria” is a qualifying disability that can entitle individuals to the protections of the Americans with Disabilities Act (“ADA”). Because these issues turn on definitions under a variety of laws, the precedent established by Williams v. Kincaid is likely to reach beyond the original context of jail facilities into any public accommodation, including elementary and secondary schools, colleges, hospitals, insurance, healthcare settings, and a myriad of other contexts. Employers must also pay close attention, as the decision will impact their obligations in responding to and accommodating LGBTQIA employees.
How Did Williams v. Kincaid Unfold?
Williams was an inmate in a county jail in Virginia who had been diagnosed with “gender dysphoria.” Though she identified as a transgender woman and had received treatment and a prescription from a doctor, the jail refused to treat her as a woman, house her with female inmates, or provide her with hormone therapy medication for at least 2 weeks. The inmate sued, alleging that the jail had violated the ADA and the Rehabilitation Act because it had refused to accommodate her disability—“gender dysphoria”—in its programs and operations.
In defense, the jail argued that gender dysphoria was specifically excluded from the definition of a “disability” under the ADA. In doing so, it relied on 42 U.S.C. § 12211(b), which exempts several conditions, including “gender identity disorders,” from the definition of “disability” under the ADA. For years, this language had been viewed as dispositive as to whether issues or conditions relating to gender identity received the protection of the ADA.
The Fourth Circuit Court of Appeals disagreed with the jail, distinguishing “gender identity disorders” as referenced in the statute from “gender dysphoria.” According to the Court, “gender identity” was based on outdated diagnostic criteria that exempted gender issues from ADA protection because it referred merely to an incongruence between one’s birth sex and gender identity. On the other hand, the Court concluded that “gender dysphoria” was acknowledged in the DSM-V to include clinically significant psychological and physical distress.
Based on this distinction, the Court concluded that the reference to “gender identity” in the ADA statutory language did not include “gender dysphoria,” so Williams was entitled to the protections of the Act.
Although the decision’s binding application is limited to the states in the Fourth Circuit, every public entity and employer should pay attention to its holding. LGBTQIA legal issues continue to evolve, and the Fourth Circuit’s decision will undoubtedly serve as guidance and a source of debate for courts across the country. The decision demonstrates that courts may be less likely to view gender identity issues as a monolith and instead may look for nuance concerning the variety of ways that gender identity issues can manifest.
This decision adds another form of protection for transgender individuals who may be suffering from gender dysphoria, in addition to the protections previously afforded under Title VII. In 2020, the Supreme Court recognized that discrimination on the basis of sexual orientation and gender identity runs afoul of the prohibition against “sex” discrimination in Title VII of the Civil Rights Act. Bostock v. Clayton County, Georgia, 590 U.S.; 140 S. Ct. 1731; 207 L. Ed. 2d 218(U.S. 2020). The Williams case pushes these issues in a new direction, however, because it did not arise in the employment context and was outside the scope of Title VII.
As the scope and basis for individual rights and protections shift, knowing when there may be an issue and when to consult counsel is a critical first step in avoiding a potentially costly legal mistake.