The legal complications growing out of the issue of transgender rights have gotten more complicated for employers with a recent decision by the U.S. Fourth Circuit Court of Appeals that gender dysphoria comes under the definition of disability that is protected by the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
Gender dysphoria occurs when a person suffers psychologically from the belief that they were born a different gender from the one manifested in the body they were born into. In other words, males who believe they are females, and females who believe they are males. Currently, federal civil rights protections pertaining to discrimination against Gays also extends to transgenders, but until now it was believed that the ADA did not to extend to their psychological condition.
The decision involves a lawsuit filed by a transgender female prisoner in a county jail who says she has gender dysphoria. She alleges, among other things, that the treatment she received while she was detained in the Fairfax County, VA, jail violated the ADA.
The Fourth Circuit now has held that gender dysphoria in reality is not a “gender identity disorder,” as that term is defined in the ADA to exclude that disorder from protections afforded under the law, according to attorneys Michelle Phillips, Jason Federmack and Janean Dunn of the Jackson Lewis law firm. In fact, the wording of the ADA explicitly excludes “gender identity disorders not resulting from physical impairments.”
The court said that when the ADA was enacted in 1990, the term “gender identity” focused on transgender status only and was distinct from and did not include gender dysphoria, which is said to cause “clinically significant distress” and other disabling symptoms.
The Fourth Circuit asserted that the “gender identity disorder” language in the ADA was based on outdated guidance that treated being transgender as a “disorder” in and of itself, while modern medicine recognizes that some, but not all, individuals who are transgender will experience gender dysphoria, the attorneys explain.
The court also ruled that the prisoner’s claim did not fit the ADA exclusion because she sufficiently pled in her complaint that her gender dysphoria required hormone therapy, a physical treatment she previously had been receiving for 15 years, and that she suffered physical distress during her incarceration when it was not provided.
The prisoner specifically alleged that she was wrongfully incarcerated among the prison’s male population, denied requests for accommodations and medical treatment in relation to gender dysphoria (including hormone therapy), was searched by male officers, and subjected to misgendering and harassment by prison staff and other inmates.
Employers Are Warned
While the Fourth Circuit is the first federal appellate court to consider this issue, whether gender dysphoria can be a covered disability under the ADA has been contested in multiple district courts across the country with mixed results, the attorneys point out.
This decision is controlling only in the region covered by the Fourth Circuit, which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia. “However, employers across the country should take note of the decision and understand that the reasoning of the Williams court could be adopted in their jurisdictions,” the attorneys stress.
“As always, employers should be deliberate and careful to ensure that transgender and gender non-binary staff are treated in a respectful manner and that situations that may lead to harassment and discrimination are avoided,” advise Phillips, Federmack and Dunn.
“With this in mind, employers should understand when a gender transition plan may be necessary and consider how to work with employees to create a comprehensive, successful plan,” they added. “Employers also should consider including LGBTQ+ training in their employee anti-harassment and discrimination training.”
Emily Harbison and Oluwaseyi Odunaiya, attorneys with the law firm of Reed Smith, go even further. “Employers, even those with employees outside the Fourth Circuit’s jurisdiction, should reassess their current policies and practices to ensure they are not excluding transgender individuals from the protections of the ADA.”
For example, they say, “Companies should inform HR professionals and others who handle requests for accommodation to engage in the interactive process with transgender employees suffering from gender dysphoria who request an accommodation (and not automatically deny the request because they take the position it is not a covered disability under the ADA).”
Attorneys for the law firm of Benesch Friedlander Coplan & Aronoff believe that the decision suggests that employers also may need to grant accommodations to employees if they suffer from gender dysphoria. They say employers in the Fourth Circuit region should treat requests for accommodation based on gender dysphoria in the same manner as any other disability-related request for accommodation.
“Although it is unclear if other circuits follow the Fourth Circuit, this decision provides insight into what may lie ahead,” observe attorneys Adam Primm, Daniel Cianchetta and Shannon Henry. “Employers should evaluate their current policies.”