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Fourth Circuit Says Prisoners with Gender Dysphoria not Excluded from ADA Protection

by Harold Hempstead

On August 16, 2022, in a question of first impression for federal appellate courts, the U.S. Court of Appeals for the Fourth Circuit held that the complaint of a Virginia jail detainee presented sufficient facts to support the conclusion that gender dysphoria is not an identity disorder but a physical impairment, and therefore it is not excluded from protection under the Americans with Disabilities Act (ADA), 42 U.S.C. ch. 126 § 12101 et seq.

Upon her incarceration in the Fairfax County Adult Detention Center, Kesha Williams was assigned to women’s housing and given female clothing. During her preliminary medical evaluation, she told Nurse Xin Wang that she is a transgender woman with gender dysphoria, who “had not undergone transfeminine bottom surgery,” the Court later recalled.

This led Wang to label “Williams as ‘male’ and change[] her prison records, including her housing assignment, to reflect that label,” according to her complaint. Since jail policy required prisoners to be classified by their genitalia, Williams was moved from women’s housing to male housing, her female clothing was taken from her and she was issued male clothing.

During Williams’ incarceration, she suffered “significant mental and emotional distress,” her complaint continued, as a result of going weeks without “her prescribed hormone medication for gender dysphoria.” While in male housing, she was reportedly harassed by guards and other detainees. Living in fear for her safety, she said that guards refused to refer to her as a woman, and her requests for accommodations permitting her “to shower privately and for [her] body searches to be conducted by a female deputy … were denied.”

One guard threatened to place Williams in confinement if she did not permit a male guard to search her. A guard known to her as Garcia then “subjected [Williams] to a ‘highly aggressive’ search that resulted in bruising to her breast and caused her ‘pain for several days.’” He also “mocked [Williams] and made light of his actions in searching her person.”

After Williams’ release from incarceration, she filed a civil rights complaint in U.S. District Court for the Eastern District of Virginia, raising claims under the ADA and the Rehabilitation Act (RA), 29 U.S.C. § 701, as well as the U.S. Constitution and state law.

After limited discovery, Williams’ complaint was amended by her attorneys, Katherine L. Herrmann and Joshua H. Erlich of the Erlich Law Office in Alexandria, listing Defendants Fairfax County Sheriff Stacey Kincaid, Wang and Garcia.

Kincaid contended that the complaint should be dismissed because gender dysphoria is a gender “identity disorder not resulting from physical impairments,” so it is excluded from ADA protection under 42 U.S.C. § 12211 (b). The district court agreed and dismissed the ADA and RA claims against Kincaid. Williams’ claims against the other defendants were also dismissed as time barred and for their legal insufficiency. Williams appealed.

On de novo review at the Fourth Circuit, Williams argued that gender dysphoria “is not a ‘gender identity disorder’” and that even if it is, it nevertheless has a physical basis; therefore, it is not excluded from ADA protection.

The Fourth Circuit observed that “[the text of the ADA [at the time that it was enacted] does not define the term ‘gender identity disorders’ and does not mention gender dysphoria at all.” This shows that “at the time of its enactment … ‘gender identity disorders’ did not include gender dysphoria,” the Court declared.

But as the Court pointed out, being transgender in 1990 was sufficient in itself to sustain diagnoses for both gender identity disorder diagnosis and mental illness. Since then, advancements in medical understanding have led to a rejection of that way of thinking, and “gender identity disorders” have been removed from the Diagnostic and Statistical Manual (5th ed) of the American Psychiatric Association (DSM-5), while “gender dysphoria,” which did not exist when ADA was enacted, has been added.

“DSM-5 defines ‘gender dysphoria’ as the ‘clinically significant distress’ felt by some of those who experience ‘an incongruence between their gender identity and their assigned sex,’” the Court continued, quoting the text to note that “the discomfort or distress caused by gender dysphoria may result in intense anxiety, depression, suicidal ideation, and even suicide.” All of which had already made its way into the Court’s lexicon via Grimm v. Gloucester Cnty. Sch. Bd.,972 F.3d 586 (4th Cir. 2020).

The Court found that while individuals with “‘gender identity disorders’ as that term was understood” when ADA was passed are excluded from its protection, nothing in the statute supports a conclusion that individuals with gender dysphoria are still excluded.

Turning to Williams’ second argument, the Court noted that even though the district court based its dismissal of her complaint on an incorrect assumption — that gender dysphoria is a gender identity disorder — Williams still alleged sufficient facts to avoid dismissal of her alternative claim that even if it is, it results from a physical impairment and is therefore not excluded from ADA protection.

Moreover, the Court said, even if Williams’ ADA claims all failed, the Court would have to allow the case to proceed because of the “discriminatory animus [that exists] toward transgender people,” as it earlier held in Grimm. Also, a holding that individuals with “‘gender identity disorders’ and gender dysphoria [are excluded from ADA protection] would discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment,” the Court added, citing Christian Legal Soc. Chapter of Univ. of Cal., Hastings Coll. Of the L. v. Martinez, 561 U.S. 661 (2010).

Finally, the Court held that Williams’ other claims were not time-barred and that she presented legally sufficient claims of gross negligence against Kincaid and Garcia. Accordingly, the district court’s decision was reversed and the case remanded for further proceedings consistent with this opinion. See: Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022).

Defendants petitioned the full Fourth Circuit to rehear the case en banc, but a majority of its 15 judges denied that request on October 7, 2022. However, the six who dissented were not subtle in their reasoning: “With the stroke of a pen, we have judicially modified the [ADA],” declared Judge Arthur M. Quattlebaum, Jr. for the minority. See: Williams v. Kincaid, 50 F.4th 429 (4th Cir. 2022).

A petition for a writ of certiorari from the U.S. Supreme Court was filed on January 10, 2022. That request has been docketed at the high court, and PLN will update developments as they are available. See: Williams v. Kincaid, USDC (E.D. Va.), Case No. 1:20-cv-01397. 

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