A Federal Court has held that gender dysphoria is now a protected disability under the ADA.

Gender Dysphoria…

is now a disability.

Employers, supervisors, managers, landlords, and anyone who deals with people on a regular basis should be aware that the traditional idea of “disability” is being turned on its head, and (at least one federal court has said that) you can now be held liable for discrimination for “disabilities” that are not visible or obvious, such as gender dysphoria.

Does this apply in California and what does this mean for employers and landlords here? Well, it means the tide is turning. Although the ruling was recently made by the Fourth Circuit Court of Appeals (and California belongs to the Ninth Circuit), this ruling shows that the courts’ views on the term “disability” is changing and other courts may use this ruling as “persuasive authority” in making their own rulings. This is especially true in this case because the Fourth Circuit cited to the Ninth Circuit’s (California) holding stating that if gender dysphoria is left untreated, the transgender patient may be at “serious risk of psychological or physical harm.” Edmo v. Corizon, Inc., 935 F.3d 757, 771 (9th Cir. 2019). Employers, landlords, and their subordinates need to know that the term “disability” is now expanding beyond what has been traditionally seen as a disability.

Although the Fourth Circuit case has to do with an inmate being discriminated against while incarcerated, the Fourth Circuit ruling could have serious impacts on employers and landlords. Discrimination can occur and has been alleged by plaintiffs in all venues whether in prisons, at work, at school, and even while shopping or dining. Employers could soon be forced to provide employees with accommodations for their gender dysphoria disability. Take a look at what the federal court in the Fourth Circuit had to say because this could have serious implications for California employers sooner than you think.

The Fourth Circuit Court of Appeals recently held that disability law now protects individuals with gender dysphoria and that a biological male inmate has a cause of action under the Americans with Disabilities Act for discrimination if the male inmate, who identifies as a woman, is not provided with his hormone therapy treatment and is not housed with the women inmates while incarcerated. The court held that the ADA should be construed broadly to include gender dysphoria and that, if the person undergoes hormone therapy treatment, he or she likely suffers from a physical impairment when he or she is forced to forego such treatment.

Kesha Williams, an inmate incarcerated at Fairfax County Adult Detention Center, was born a biological male, but had been living for some time identifying as a woman. In addition, for a number of years, Williams had been receiving hormone therapy to feminize his body and had brought his hormone therapy medication to the detention center, hoping to continue the treatment while incarcerated. Williams had not undergone any type of gender reaffirming surgery and had his male genitals in tact.

At the time, the detention center had an inmate housing policy stating that “[a]ll transgender and gender non-conforming inmates shall be classified and assigned housing based on their safety/security needs, housing availability, and genitalia.” In addition, the prison had another policy that stated “male inmates shall be classified as such if they have male genitals” and “female inmates shall be classified as such if they have female genitals.”

As a result, when Williams was first incarcerated, he was housed with the women. Upon examination by Nurse Wang, Williams (who did not undergo transfeminine bottom surgery) was labelled as a “male” and housed with the male inmates. Williams requested that Nurse Wang return his hormone therapy medication to him, and she did not. Instead, Nurse Wang requested that he fill out a medical release form and told him she would need to follow-up with the prison healthcare staff. Williams waited approximately a week before resuming his hormone therapy medication.

In his complaint against the Fairfax County Sheriff, Williams alleged that his civil rights under the Americans with Disabilities Act (ADA), the Rehabilitation Act, the U.S. Constitution, and the state common law. Williams complained that: 1) Nurse Wang had failed to administer his hormone therapy medication on a consistent basis, 2) he was housed with the male inmates against his will, 3) he was forced to dress like the male inmates, 4) he was forced to be searched by male guards, and 5) he was often times referred to as a male (despite his protests) with names such as “mister, sir, he, or gentleman.” The Fourth Circuit Court of Appeals reversed the lower court’s decision and held that William’s rights were violated under the ADA, declining to make any determination with regard to the U.S. Constitution or any other law.

The ADA (42. U.S.C. §§ 12101, et. Seq.) makes it illegal to discriminate against any qualified person with a disability. The term “disability” broadly includes “a physical or mental impairment that substantially limits on or more major life activities of such individual.” 42 U.S.C. §12102(1)(A). The ADA specifically excludes the following from disability protection: “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders.”

In its opinion, the Fourth Circuit court cited to Congress’ amendment to the ADA that defined the term “disability” more broadly with the intention of providing disability protection for more individuals “to the maximum extent permitted by the [ADA’s] terms.” In interpreting the statutory exceptions, the court found that 1) gender dysphoria is not the same as gender identity disorder (Section 12211(b)’s exclusion), and 2) William’s gender dysphoria results from physical impairments. This is because Williams asserted that his gender dysphoria required physical treatment such as hormone therapy which effectively managed and alleviated William’s gender dysphoria because the treatment made his body more feminine. As a result, Williams contends that when he was incarcerated and forced to forego hormone therapy, he experienced emotional, psychological, and physical distress.

In addition, the Fourth Circuit Court of Appeals found that the detention center’s housing policy appeared to balance various factors on a case-by-case basis in determining where an inmate should be housed; however, the court held that the detention center’s housing policy that specifically stated inmates should be housed based on their genitalia directly contradicted the multi-factor balancing policy. Instead, the court held that the detention center’s housing policy is “far from exhibiting a degree of care” and “puts transgender inmates at further risk of harm,” citing various cases that indicates “the safety risks of housing transgender women in men’s prisons are by now well-recognized.”

Clearly, the court has expanded the terms “disability” and “physical impairment” beyond what people have traditionally believed to be a disability or physical impairment, which were nearly always readily visible and quite obvious. Today, “disability” and “physical impairment” has been expanded to include “gender dysphoria,” and the phrase “physical impairment” can now be found if the individual must receive physical treatment (hormone therapy medication) to alleviate their symptoms, mainly the de-feminization or masculinization of his or her body.

This means that employers need to keep abreast of the new rulings and be aware that the traditional views of what is and is not considered a disability is changing. If you are an employer, you will need to be on guard and actively tailoring your company policies and actions to reduce your liability exposure for discrimination – including the new non-obvious, non-traditional ones.