Gender Dysphoria Is Covered Under the Americans with Disabilities Act

In Williams v. Kincaid, No. 21-2030 (4th Cir. Aug. 16, 2022), the U.S. Court of Appeals for the Fourth Circuit held that “gender dysphoria” is not excluded from the definition of “disability” under the Americans with Disabilities Act (ADA). This is the first federal court of appeals to have considered this issue. The decision is not binding on Illinois employers, but employers should still be mindful of this decision since the federal court of appeals that covers Illinois (Seventh Circuit) may come to the same conclusion if the right case is presented before it.

Gender dysphoria is discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth. Persons suffering from that condition offer benefit from medical treatment, including hormone therapy.

Plaintiff, a transgender woman, was incarcerated, and prior to her incarceration, she underwent medical treatment for her gender dysphoria. Plaintiff filed a complaint in federal court when her requests for medical treatment in prison were delayed and she was harassed regarding her sex and gender identity.

In 2008, the ADA was amended to broaden its coverage. However, the ADA expressly excludes from coverage “gender identity disorders not resulting from physical impairments.” Based on the ADA’s history and advances in medical understanding, the court of appeals held that gender dysphoria is not a “gender identity disorder,” as that term is used in the ADA. The court also held that Williams’ claim did not fit the ADA exclusion because she sufficiently alleged in her complaint that her gender dysphoria required hormone therapy, a physical treatment she received for 15 years, and that she suffered physical distress during her incarceration when such treatment was not provided.

Employers should be mindful of gender identity issues in the workplace, requests for reasonable accommodations that fall within the ADA, and any complaints of harassment related to gender identity. Employees, managers, and supervisors should be sufficiently trained on LGBTQ issues that they may confront in the workplace.

If you need legal assistance on a specific matter or would like a review of your forms, policies, or company practices concerning any of the new laws or requirements, please contact Donald S. Rothschild or Brian M. Dougherty.

The authors, publisher, and distributor of this GSRNH Legal Update are not rendering legal or other professional advice or opinions on specific facts or matters. Under applicable rule of professional conduct, this communication may constitute attorney advertising.
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