The federal appeals court that covers Maryland and Virginia recently ruled that people with “gender dysphoria” qualify for protection under the Americans with Disabilities Act (ADA). A majority of the Fourth Circuit Court of Appeals said that gender dysphoria is covered, despite what appeared to be a carve-out in the language of the law.
What is gender dysphoria?
According to the American Psychiatric Association, gender dysphoria is a medical condition where an individual feels an uncomfortable conflict between the gender they were assigned at birth and the gender with which they identify. Gender dysphoria is often treated by helping the person transition (both medically and socially) to the gender with which they identify.
Does the language of the ADA exclude gender dysphoria as a disability?
According to the Fourth Circuit, gender dysphoria can be a qualifying disability under the ADA. Although the ADA explicitly excludes coverage for “gender identity disorders not resulting from physical impairments,” the Fourth Circuit held that the phrase “gender identify disorder” is an outdated and obsolete diagnosis that is distinct from gender dysphoria. Accordingly, the Fourth Circuit held that “nothing in the ADA. . . compels the conclusion that gender dysphoria constitutes a ‘gender identity disorder’ excluded from ADA protection.”
The Fourth Circuit further held that a contrary ruling would be unconstitutional. It wrote:
“We have little trouble concluding that a law excluding from ADA protection both ‘gender identity disorders’ and gender dysphoria would discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment.”
What does this mean for employers?
Although this case focused specifically on prisoners’ rights under the ADA, this holding will likely have far-reaching effects and is likely to be interpreted as covering gender dysphoria in the context of employment and public accommodations.
Accordingly, employers would be wise to treat gender dysphoria as a legitimate disability that is protected by federal law. This means that employers should not discriminate against transgender people who suffer from gender dysphoria in hiring or in the workplace. Employers should also be prepared to offer reasonable accommodations to people who have gender dysphoria as they seek treatment.