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A Medical Condition Is a Medical Condition (and Could Be a Disability), Regardless of Gender Identit A Medical Condition Is a Medical Condition (and Could Be a Disability), Regardless of Gender Identit

A Medical Condition Is a Medical Condition (and Could Be a Disability), Regardless of Gender Identity

There is a carve-out to the Americans with Disabilities (ADA) that we rarely reference in our work with clients and that most employers have never used. It contains a list of what is referred to as sexual behaviors, including behaviors that everyone can agree are criminal—like pedophilia and voyeurism. The carve-out refers to such behaviors as “sexual behavior disorders.” However, the carve-out also includes other language that some have argued excludes from the definition of a disability certain mental conditions recognized in the medical community that may be experienced by individuals who do not identify with their sex assigned at birth. The Fourth Circuit recently addressed one such condition—gender dysphoria—and held that it could qualify as a disability under the ADA. While the Fourth Circuit only covers a limited area of the country, and the decision did not involve an employment relationship, the decision and the court’s reasoning may be instructive to employers in applying the nondiscrimination or failure to accommodate provisions of the ADA. 


As noted, the underlying facts of this case have nothing to do with an employment relationship. Rather, the case involved an individual, Kesha Williams, who was sentenced to six months’ incarceration. Although Ms. Williams was initially placed in a facility with other female inmates, prison deputies subsequently transferred her to a male facility once prison officials discovered that she is transgender. Ms. Williams alleged that the facility denied her treatment for the gender dysphoria she experienced, and that fellow inmates and prison staff harassed her and ignored her requests that they refer to her correctly as a woman. Further, Ms. Williams’ requests for certain accommodations—to shower privately and for body searches to be performed by a female deputy—were consistently denied.

According to the World Professional Association for Transgender Health Standards of Care, 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.” Those suffering from gender dysphoria often benefit from medical treatment, including hormone therapy, which Williams had received for fifteen years prior to her incarceration. 

When Ms. Williams’ incarceration ended in May 2019, she challenged the treatment she received in the facility, alleging that the facility violated the ADA. Initially, the case was dismissed by a court in the Eastern District of Virginia, which held that exceptions in the ADA, which were added in 2008, precluded transgender individuals from protection by the ADA because being transgender, and, as a result, experiencing gender dysphoria, is “an identity disorder not resulting from physical impairment.” Ms. Williams appealed the decision to the Fourth Circuit.

Fourth Circuit Holding

When it issued its decision on August 16, 2022, the Fourth Circuit—which has appellate jurisdiction over Maryland, North Carolina, South Carolina, Virginia, and West Virginia— became the first appellate court to hold that individuals experiencing gender dysphoria may be entitled to the protections of the ADA. 

The central question addressed by the court was not whether gender dysphoria is a disability covered under the ADA. The decision focused on the interpretation of a carve-out in the ADA excluding gender identity disorder, along with “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism,” and “other sexual behavior disorders” [1] from protection under the ADA. The court noted the clear evidence of anti-transgender animus in the exception itself, [2] which likens being transgender to being a pedophile, as well as in the legislative history, which documents the moral opprobrium directed at transgender people displayed by senators leading up to the adoption of the amendment. See generally Kevin M. Barry, Disabilityqueer: Federal Disability Rights Protection for Transgender People, 16 Yale Human Rts. & Dev. J. 1 (2014).

In finding that gender dysphoria may not be covered by the carve-out (and, as a result, may be covered by the ADA), the Fourth Circuit distinguished between gender identity disorder, which the American Psychiatric Association removed from the Diagnostic and Statistical Manual of Mental Disorders (DSM), and gender dysphoria. The latter had not yet been acknowledged by the American medical community when the ADA was passed. Gender dysphoria was later added to the fifth edition of the DSM (DSM-5) in place of gender identity disorder. “Put simply, while the older DSM pathologized the very existence of transgender people, the recent DSM-5’s diagnosis of gender dysphoria takes as a given that being transgender is not a disability and affirms that a transgender person’s medical needs are just as deserving of treatment and protection as anyone else’s,” Judge Diana Gribbon Motz wrote for the court.

In ultimately finding that gender dysphoria may be a disability protected by federal antidiscrimination law, Judge Gribbon Motz wrote, “Given Congress’ express instruction that courts construe the [ADA] in favor of maximum protection for those with disabilities, we could not adopt an unnecessarily restrictive reading of the ADA.” Judge Gribbon Motz went on: “Nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a ‘gender identity disorder’ excluded from ADA protection.”

The Fourth Circuit additionally held that even if Ms. Williams’ gender dysphoria and “gender identity disorders” were not categorically distinct, her gender dysphoria nevertheless falls within the safe harbor in the carve-out for “gender identity disorders . . . resulting from physical impairments.” Aided by the Equal Employment Opportunity Commission’s promulgated regulations defining the phrase “physical impairments” expansively as “[a]ny physiological disorder or condition . . . affecting one or more body systems, such as neurological. . . and endocrine,” the court concluded that Ms. Williams had alleged sufficient facts to make plausible the inference that her gender dysphoria results from physical impairments. 29 CFR § 1630.2(h)(1).

What Employers Should Know

Although the circumstances of Ms. Williams’ claims did not arise in the employment context, the Fourth Circuit’s interpretation of the ADA’s potential coverage of gender dysphoria applies equally to the employment context. Indeed, the Fourth Circuit’s decision could have immediate and significant implications for employers that do not provide accommodations to or that discriminate against employees with gender dysphoria or similar conditions who work in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Further, although the decision only applies to states within the Fourth Circuit, other circuit courts may adopt its decision going forward. 

The bottom line: Employees experiencing gender dysphoria or any other medical condition, regardless of their gender identity, may be entitled to the protections of the ADA if they can show that they are substantially limited in a major life function. This case demonstrates, once again, the expansive nature of the definition of a disability under the ADA and stands to caution employers who rely upon the phrase “gender identity disorder” to avoid providing reasonable assistance to their transgender employees who suffer from a medical condition. 


  • As with any other impairment or medical condition, an employee or former employee is still required to show that that they are substantially limited in a major life activity and are qualified to perform the job in question in order to access the ADA’s protections.
  • Title VII prohibits discrimination against individuals based on their sex, which courts have held includes gender identity. 
For assistance with these or other scenarios, contact Sloan Holladay-Crawford, Tami Earnhart, or the Ice Miller Workplace Solutions lawyer with whom you most frequently work.

[1] This author notes that the quoted text of the 2008 amendments to the ADA includes offensive and inappropriate terminology to describe members of the transgender community. 
[2] “To begin with, the provision lists ‘gender identity disorders’ alongside pedophilia, exhibitionism, and voyeurism. This grouping implicitly ‘brands all [transgender people] as [equivalent to] criminals, thereby making it more difficult for [them] to be treated in the same manner as everyone else.’” Lawrence v. Texas, 539 U.S. 558, 581 (2003) (O’Connor, J., concurring in the judgment).

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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