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On August 16, 2022, the U.S. Court of Appeals for the Fourth District issued a landmark decision, Williams v. Kincaid, holding that gender dysphoria may qualify as a disability under the Americans with Disabilities Act ("ADA"). This is the first federal appellate court decision to extend the law's protections to individuals who identify as transgender and non-binary. Specifically, this decision outlaws discrimination against people who experience gender dysphoria in Maryland, Virginia, West Virginia, North Carolina, and South Carolina.
According to the World Professional Association for Transgender Health Standards of Care, gender dysphoria is the “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.”
Though explicit language in the law excludes “transsexualism” and “gender identity disorder” as protected classes, the Fourth Circuit majority explains that gender dysphoria is distinct from the "gender identity disorders" and therefore not excluded from the definition of "disability" under the ADA. Rather, the Fourth Circuit holds that gender dysphoria is a disability under the ADA’s definition of a “physical or mental impairment that substantially limits one or more major life activities.” Given that gender dysphoria can result in physical distress or require the use of a physical treatment, it may qualify as a protected disability under the ADA.
Gender Identity Regulations in California
California has expansive gender related protections regulations, which go even further than the Fourth Circuit. The California Department of Fair Employment and Housing outlaws discrimination, harassment, and retaliation on the basis of one's gender, "gender identity", "gender expression", or the perception by a third party of any of the aforementioned as a form of "sex" discrimination. Further, the regulations outlaw discrimination against an individual who: (i) is transitioning; (ii) has transitioned or (iii) is perceived to be transitioning. For more information regarding California's gender regulations and a summary of key policies and practices that covered employers are required to implement, please visit our previous Compliance Matters article here.
In addition, the Ninth Circuit pointed out in Edmo v. Corizon, Inc. that the “[f]ailure to follow an appropriate treatment plan [for gender dysphoria] can expose transgender individuals to a serious risk of psychological and physical harm.” Though the Ninth Circuit has not yet discussed whether gender dysphoria can be a covered disability under the ADA, the language in the Edmo decision suggests that the Ninth Circuit may be open to adapting the reasoning of the Williams case in the future.
Takeaways
The Supreme Court may be called to provide further direction regarding the implications of this case. However, the Williams decision is now law in the Fourth Circuit and may be adopted by other circuit courts as well. Employers who reside in Maryland, Virginia, West Virginia, North Carolina, and South Carolina are required to offer accommodations in circumstances that affect transgender and non-binary individuals and ensure that they are not excluding these individuals from the protections of the ADA. For instance, employees may request for a leave of absence to seek gender-affirming treatment and gender neutral restrooms in the workplace. Employers should thus engage in the interactive process with employees suffering from gender dysphoria who request an accommodation.
Moreover, as discussed above, California employers also face similar regulations regarding gender identity. In order to avoid unwanted discrimination claims, all impacted employers should review their job applications, policies, and practices that may implicate sex discrimination, gender identity, and gender expression. Employers may also wish to provide LGBTQ diversity and inclusion programs in the workplace and provide management training programs to ensure compliance with these regulations.
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