Discrimination on the basis of gender is prohibited in virtually every area of life, including housing, employment, education, insurance, and public accommodations.
But what happens when a person’s nonconforming gender identity manifests in trauma or depression so debilitating it impacts their ability to engage in important life activities, such as work? This is the scenario underlying Williams v. Kincaid (No. 21-2030), a 4th Circuit case decided on August 16. In that case, a transgender person was placed in the men’s unit of a Virginia correctional institute. Because of this alleged incorrect placement, Williams received no care for a condition known as “gender dysphoria.” Gender dysphoria, according to the 4th Circuit, is a physical disability warranting protection from discrimination under the Americans with Disabilities Act (ADA).
Although it is a psychological diagnosis, gender dysphoria is generally recognized by both legal and mental health professionals as a physical condition. The American Psychiatric Association calls it “psychological distress resulting from a disconnect between one’s sex assigned at birth and one’s gender identity,” and the Diagnostic and Statistical Manual (DSM-5-TR) defines it as “a marked incongruence between one’s experienced/expressed gender and their assigned gender” lasting at least six months. To meet criteria for the diagnosis, the condition must be associated with “clinically significant distress or impairment in social, occupational, or other important areas of functioning.”
Because gender dysphoria may result in physical impairments such as intense anxiety or depression, the 4th Circuit found that it fell within the EEOC’s definition of “physical impairment,” which is “any physiological disorder or condition…affecting one or more body systems, such as neurological…and endocrine.” 28 C.F.R. § 35.108(b)(1)(i). This interpretation led the court to conclude that Williams’ gender dysphoria was a condition warranting treatment as a disability and thus protection against discrimination under the ADA.
This is not the first time gender dysphoria has been found by a federal court to be an ADA-protected disability. In Blatt v. Cabela Retail Inc. (No. 5:14-cv-04822 (E.D. Pa. May. 18, 2017)), a Pennsylvania federal court reached the same conclusion after reviewing earlier federal cases involving gender dysphoria. Those cases, the court noted, relied on the express exclusion of “gender identity disorders not resulting from physical impairments” set forth in 42 U.S.C. § 12102. The Blatt court opined that these prior holdings used too broad a brush stroke:
“Congress was careful to distinguish between excluding certain sexual identities from the ADA's definition of disability, on one hand, and not excluding disabling conditions that persons of those identities might have, on the other hand…. In view of these considerations, it is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have — such as Blatt's gender dysphoria, which substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning.”
More recent case law has recognized gender dysphoria as separate from “gender identity disorder.” This is important, because while Title VII forbids employment discrimination on the basis of sexual orientation and gender identity, the ADA bars discrimination in the workplace based on physical or mental disability, including, presumably, the physically debilitating anxiety and depression associated with gender dysphoria.
What does this mean for California employers? Although the Williams case was handed down by the 4th Circuit, it continues a line of federal cases recognizing gender dysphoria as a potential disability entitled to ADA protections. The implication of this holding is that all obligations and restrictions set forth in the ADA – including the requirement for reasonable accommodation and the prohibitions against discrimination or retaliation – may apply to companies with employees who have been diagnosed with the condition. Employers, having knowledge of an employee’s diagnosed condition, should likely recognize that transgenderism, if associated with gender dysphoria, could be considered an ADA disability in any lawsuit for workplace disability discrimination.
The bottom line is that employers across the country should take steps to prevent harassment and discrimination against all people, including those that identify as transgender and gender-nonconforming workers. In addition, employers should assess whether reasonable accommodations for such workers are available when they know of nonphysical conditions, including anxiety and depression, that could manifest in physical impairment that interferes with the individual’s ability to perform his or her assigned work. This recent expansion of ADA protections, in addition to the protections already afforded under Title VII, provides new and broader protections in the workplace for transgender and gender-nonconforming individuals.