The Americans with Disabilities Act prohibits public entities from discriminating against any individual with a “disability.” The ADA generally defines “disability,” with respect to an individual, as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” But it explicitly excludes from that definition “gender identity disorders not resulting from physical impairments.”
In a divided Fourth Circuit panel ruling yesterday in Williams v. Kincaid, Judge Diana Gribbon Motz’s majority opinion eviscerated that exclusion. The case involves a complaint brought by Kesha Williams, a man who identifies as female and who suffers from gender dysphoria. Williams complains that Fairfax County moved him from the women’s side of its prison to the men’s side when it discovered that he is male and that he experienced delays in medical treatment for his gender dysphoria and was harassed by prison deputies and other inmates.
Motz (joined by Judge Pamela Harris) rules that the ADA’s exclusion of “gender identity disorders not resulting from physical impairments” does not apply for two reasons. First, she concludes that gender dysphoria is categorically not a “gender identity disorder” at all. (Slip op. at 9-15.) She claims that when the ADA was enacted in 1990, the concept of “gender identity disorders” did not include gender dysphoria. By Motz’s illogic, the fact that the American Psychiatric Association removed “gender identity disorders” from its revised diagnostic manual in 2013 and substituted a narrower diagnosis of “gender dysphoria” somehow means that gender dysphoria is not a “gender identity disorder” under the ADA.
But as Judge Marvin Quattlebaum explains in dissent (slip op. at 38-47), the gender dysphoria that Williams alleges—“discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristics)”—“falls precisely under the [American Psychiatric Association’s] description of, and diagnostic criteria for, gender identity disorders” in its diagnostic manual in effect in 1990. Indeed, Quattlebaum shows more broadly that “[f]rom 1990 to today, gender identity disorder has been understood to include distress and discomfort from identifying as a gender different from the gender assigned at birth.”
What’s more, a gender identity disorder wouldn’t even fall within the general definition of an ADA “disability” in the first place unless it resulted in an “impairment that substantially limits one or more major life activities of [an] individual.” So it’s precisely because the subcategory of gender dysphoria involves “clinically significant stress” that the exclusion comes into play.
Second, Motz maintains that even if gender dysphoria is a gender identity disorder under the ADA, Williams’s complaint can plausibly be read to support the inference that his gender disorder “result[ed] from physical impairments.” (Slip op. at 15-20.) But as Quattlebaum objects, the complaint does not identify any part of Williams’s body that is impaired or even allege any physical impairment. (Slip op. at 50-53.)