Gender dysphoria is covered by ADA, appeals court says

I'm not sure I agree. With all due respect.

NOTE FROM ROBIN: The original version of this post said that the change from “gender identity disorder” to “gender dysphoria” was made by the American Psychological Association. It was actually made by the American Psychiatric Association. That change has now been made to the post.


An issue that has been percolating for the past few years is whether gender dysphoria is a "disability" within the meaning of the Americans with Disabilities Act. I've posted on it here and here.

Until this week, no federal appeals court had ruled on the issue. But on Monday, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit (my circuit) held 2-1 that gender dysphoria is a disability. Although the lawsuit was brought by a prison inmate, the court's ruling has obvious implications for employers.

You may be thinking, "What's the big deal? Of course gender dysphoria would be a disability protected by the ADA. And, according to her lawsuit, this plaintiff (a transgender female who says she was sent to the men's prison, subjected to harassment by her fellow inmates and by prison personnel, and her medical treatment denied or delayed) was treated abominably. She ought to be able to sue."

Maybe so, but I would say not under the ADA. We don't think about it much, but the ADA has a list of exclusions. The one that employers are probably most familiar with is the one pertaining to current users of illegal drugs. Current users of illegal drugs are not "disabled" within the meaning of the ADA, which is why employers can fire them (or require them to go through an employee assistance program) when they test positive for cocaine.

But the statute excludes more than current users of illegal drugs. Section 12211(a) excludes homosexuality and bisexuality because they are not impairments. Section 12211(b) excludes "psychoactive substance use disorders resulting from current use of illegal drugs," plus pyromania, kleptomania, compulsive gambling, and a long list of sexual "disorders."

That last part is what we need to focus on. Among other sexual "disorders," Section 12211(b) says that "transsexualism" is not a disability. It also says that "gender identity disorders not resulting from physical impairments" are not disabilities.

The terminology used in the ADA "sexual disorder" exclusions is pretty dated. The ADA was enacted in 1990, and it was a different world then. It was amended effective in 2009 (the catchily-named "Americans with Disabilities Act Amendments Act"), and the amendment dramatically broadened the types of impairments that would be considered "disabilities" under the ADA. The amended statute also said that employers and courts should err on the side of finding that a given medical condition was a disability covered by the ADA.

But the amendment did not remove or even alter the Section 12211 exclusions.

Getting back to our Fourth Circuit decision, the panel majority (Judge Diana Gribbon Motz, joined by Judge Pamela Harris) said that “gender identity disorders” and “gender dysphoria” are two different things. When the ADA was enacted, the American Psychiatric Association Diagnostic and Statistical Manual listed a condition known as "gender identity disorder." It encompassed people who did not identify with their biological gender as well as people who had severe psychological problems resulting from the fact that they did not identify with their biological gender. In 2013, the APA did away with "gender identity disorder" and began using "gender dysphoria" to describe people who fell into the second category. Here's how the APA currently describes gender dysphoria:

Gender dysphoria refers to the distress that may accompany the incongruence between one's experienced or expressed gender and one's assigned gender. Although not all individuals will experience distress as a result of such incongruence, many are distressed if the desired physical interventions by means of hormones and/or surgery are not available. The current term is more descriptive than the previous DSM-IV term gender identity disorder and focuses on dysphoria as the clinical problem, not identity per se.

APA, Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition (2013).

Thus, according to the Fourth Circuit panel majority, not all transgender individuals have gender dysphoria. The mere state of being transgender falls within the exclusions of Section 12211 of the ADA. But dysphoria -- psychological distress -- associated with being transgender is not excluded by Section 12211.

And the panel majority noted that Congress has said that the ADA definitions of "disability" should be interpreted liberally. 

Here's where I respectfully disagree:

  • I think the panel majority is requiring Congress to be too specific. The APA in the old days referred to a condition known as "gender identity disorder." It stopped using that term in 2013. The ADA, on the other hand, refers to "gender identity disorders." Plural. In other words, I think Congress was referring to a category of gender-identity-related conditions, not to one specific diagnosis. Judge Marvin Quattlebaum makes this point in his excellent dissent. Viewed that way, I submit that gender dysphoria is a subcategory of "gender identity disorders" and still excluded by Section 12211.
  • Judge Quattlebaum also notes that the APA itself said that it was changing from using "disorder" to "dysphoria" primarily to avoid stigmatizing transgender people and to make it easier for them to get insurance coverage for treatment. In other words, the change was arguably not meant to be substantive. 
  • In my opinion, the panel majority didn't give enough weight to the fact that Congress had a chance to amend or scrap entirely the "sexual disorder" exclusions in 2009 but chose not to do so. That indicates that Congress wanted the exclusions to remain unchanged.
  • Finally, getting back to the "liberal interpretation of the ADA" part, I agree with the panel majority that this is what Congress said in the 2009 Amendments Act. But "liberal interpretations" are irrelevant when the statute excludes a given condition from coverage as it has done with gender identity disorders, including (I submit) gender dysphoria.

I'll be interested to see how other federal appeals courts rule on this issue, and whether the defendants ask for a rehearing by all of the Fourth Circuit judges. It is an issue that could even get to the Supreme Court. 

I am not saying that the plaintiff in this case might not have other valid legal claims based on the facts that she has alleged in her lawsuit. I also suspect that most employers in the private sector would have ensured that their transgender employees were not discriminated against, mistreated, or harassed at work, and would have made reasonable accommodations for their medical needs. That's still a good thing. 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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