Court of Appeal ruling on transgender rights: what it means
In a case involving a former inmate who accused a Virginia prison of discrimination, a federal appeals court ruled that the Americans with Disabilities Act (ADA) covers people with “gender dysphoria.”
The decision expanded the legal consensus on the protections against discrimination available to some transgender people. The United States Court of Appeals for the 4th Circuit held in a majority opinion that the ADA protects transgender people with gender dysphoria from discrimination based on disability.
Not all transgender people suffer from dysphoria, but the ruling is a significant milestone in the case law as protections against discrimination and the medical rights of transgender people are challenged across the country.
“This is a huge victory. There is no policy reason to exclude transgender people from our federal civil rights laws,” said Jennifer Levi, Transgender Rights Project Director at GLBTQ Legal Advocates & Defenders (GLAD). Press release Tuesday.
“This opinion goes a long way toward breaking down the social and cultural barriers that prevent people with treatable, but poorly understood medical conditions from being able to thrive.”
HAPPY co-author of an amicus memoir in the case of other LGBTQ and disability rights organizations.
The case, Kesha Williams vs. Stacey Kincaid et al., primarily focuses on Kesha Williams’ housing in prison. Williams, a transgender woman, was initially incarcerated in female housing but was soon moved to male housing at the Fairfax County Adult Detention Center when authorities learned she was transgender.
Williams sued Fairfax County Sheriff Stacey A. Kincaid, a prison deputy and prison nurse, alleging that while she was detained there she “experienced delays in medical treatment for her dysphoria gender, harassment by other inmates and persistent and intentional sexual abuse and harassment by prison deputies.
In a filing in support of a motion to dismiss, Kincaid argued that gender dysphoria was not covered by the ADA because “it is an identity disorder not resulting from physical disabilities”.
The ADA, however, does not limit its general definition of disability to conditions resulting from physical injury or impairment: this has been true since its writing, and the ADA’s protections apply to people in a variety of circumstances. , including Americans with anxiety disorders like PTSD or panic disorder, intellectual disabilities and personality disorders.
The request passed the district court, but the appeals court later upheld Williams’ argument, finding that binary policies that categorize inmates based solely on their genitals, such as those enforced by the Sheriff Kincaid, constitute gross negligence under Virginia law and violate federal law under the Prison Rape Elimination Act.
The ADA does not provide an exhaustive list of approved disabilities, and the main limiter of the law’s definition is whether a physical or mental impairment “significantly limits” one or more of a person’s major life activities. If so, it is a disability under the law.
So what is the root of the controversy? The law lists a number of exclusions from the ADA definition, which played a key role in Kincaid’s argument.
Under § 12211(a), the ADA’s drafters intentionally excluded homosexuality and bisexuality from the bill’s language because sexuality is not considered a “disability.”
In § 12211(b), without this caveat, the law further excludes “cross-dressing, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania or pyromania; or substance use disorders resulting from current illegal drug use.
This expression, “identity disorders not resulting from physical impairments”, is the one that was used in Williams vs. Sheriff Kincaid to justify arguing for the dismissal of Kesha Williams’ ADA claims. But here’s the sticking point: Gender identity disorder is a diagnosis that predated — and never included — gender dysphoria.
In 1990, the Diagnostic and Statistical Manual of Mental Disorders (DSM) listed gender identity disorder and ultimately any transgender identity as a mental illness, defined by the incongruity between assigned sex and identity. But as the medical understanding of transgender people has expanded, “gender identity disorder” was removed from the DSM by the American Psychiatric Association in 2013. In its place, the APA added a diagnosis of “gender dysphoria”.
Gender dysphoria, on the other hand, is defined as the “clinically significant distress” experienced by a person who experiences an “incongruity between their gender identity and assigned sex”.
Not all trans people are dysphoric, and all 4e Circuit found that the APA’s decision to remove the outdated disorder confirms that the diagnoses are distinct and that no reasonable reading of the DSM could interpret dysphoria as a kind of “gender identity disorder” such as it was understood at the time the ADA was promulgated.
The court further reminded all parties that the 2008 Congressional Amendment to the ADA directed the courts to apply the law broadly, with the intention of making it easier for people with disabilities to access the protection under the ADA and stating that the definition of disability should be construed in favor of persons claiming coverage “to the maximum extent permitted by [ADA’s] terms.”
Thus, courts have shifted to an understanding of gender dysphoria shaped by modern medical consensus and a broad interpretation of disability, focusing instead on the disabling symptoms of distress experienced by those with it.
A troubled history
Beyond clarifying the definitions at stake and the court’s legal interpretation within the ADA, the circuit judges explain that the original enactment of § 12211(b) itself was affected by moral judgment and “discriminatory animosity,” pointing to a quote from the late Sen. Jesse Helms (R-NC) during a Senate debate around the ADA that confused many groups he found objectionable.
Senator Helms was a key dissenter of ADA inclusions and fought hard for the exclusions now in the law.
“If it was a bill involving people in wheelchairs or people injured in war, that’s one thing,” Helms said at the time. “But how the hell did you get to the place you don’t even have [exclude] transvestites?
“How did you get into this business of classifying people with HIV, most of whom are drug addicts or gay or bisexual, as people with disabilities?
Helms said he opposed disability protections, especially for people living with HIV, for moral reasons centered on their identity.
“What I take away from all of this is that the US government is telling the employer that they can’t set moral standards for their company by asking someone if they’re HIV positive, even though 85% of these people are engaged in activities that most Americans find abhorrent,” he said.
Ultimately, the 4th Circuit based its decision on the “fundamental promise of equality.” . . who animates the ADA.
“We see no legitimate reason why Congress would intend to exclude transgender people who suffer from gender dysphoria from ADA protections,” the appeals court judges wrote in their decision.
Also in play in Williams vs. Kincaid is the Rehabilitation Act of 1973, which got less coverage in this case, in part because the ADA and the Rehabilitation Act cover virtually the same federal disability discrimination protections .
But the 4th Circuit rulings in this case also apply to the enforcement of the pardon law, protecting people from discrimination in programs conducted by federal agencies or in programs involving federal funding or employment.
With the appeals court ruling, the district court’s dismissal of Kesha William’s ADA claims has been overturned, and Williams will be able to move forward with her case against Kincaid.
The case will first return to the lower court.
Audrey Nielsen is a TCR Contributing Writer.