Applies to: Employers with 15+ MD, NC, SC, VA, and WV Employees
Effective: August 16, 2022
In Williams v. Kincaid, the Fourth Circuit Court of Appeals stated gender dysphoria is protected by the Americans with Disabilities Act (ADA) and the Rehabilitation Act. In this case, the plaintiff was a transgender woman with gender dysphoria incarcerated in a men’s correctional facility. She experienced delays in medical treatment and harassment and misgendering by both prison officials and inmates. As a result, she sued the correctional facility for violations of the ADA, the Rehabilitation Act, the U.S. Constitution, and Virginia common law.
The defendants argued that gender dysphoria was explicitly excluded from protection by the ADA as a gender identity disorder not resulting from a physical impairment under § 12211(b). The Fourth Circuit disagreed that gender dysphoria is a gender identity disorder requiring exclusion from ADA protection. In coming to its decision, the Fourth Circuit looked to changes in the medical understanding of gender dysphoria and found a difference from what Congress meant to exclude from ADA protection. Also, the court noted the ADA is to be construed broadly in favor of maximum protection, so the exclusion of gender dysphoria from protection was unnecessarily restrictive.
Although not in the employment context, the impact of this case is far reaching for employers. Employees who experience gender dysphoria are entitled to reasonable accommodations. This could affect existing policies on restroom usage, company housing, and leaves of absence for medical treatment. Additionally, employees with gender dysphoria are protected from discrimination, harassment, and retaliation under the ADA. Under this ruling, employers should treat gender dysphoria as it would other conditions under the ADA.
Action Items
- Review and revise policies as necessary to include accommodations and protections.
- Have appropriate personnel trained on reasonable accommodations for employees with gender dysphoria.
- Consult with legal counsel prior to rejecting a request for accommodations.
- Subscribers can call our HR Hotline at (833) 268-5531 for further assistance.
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