On August 16, 2022, the federal Court of Appeals in the Fourth Circuit ruled that gender dysphoria is a disability protected by the Americans with Disability Act (ADA). The decision, Williams v. Kincaid, marks the first time a federal appellate court has interpreted whether the long-standing ADA protects transgender individuals from discrimination by public entities providing programs and services.

This decision resolves a dispute over the issue in the lower courts in South Carolina, North Carolina, Maryland, Virginia, and West Virginia. Although the ruling challenged inmate policies in place at the Fairfax County, Virginia prison, the ruling also impacts employers covered by Title I of the ADA and businesses that qualify as places of public accommodation under Title III of the ADA.

The case involved a transgender woman who sued the Fairfax County, Virginia sheriff for housing her in a prison with men. Kesha Williams was initially assigned to live in the women’s section of the prison, but once she identified as transgender to the treating nurse and explained that she experienced gender dysphoria, the nurse started asking questions. Ms. Williams informed the nurse that she had received hormone treatments for the previous 15 years. She also explained she had not had genital surgery, which was important because the prison had a policy requiring inmates to be assigned housing based on their genitalia. As a result, Ms. Williams was housed with the male inmates and required to wear men’s clothing.

Subsequently, Ms. Williams suffered harassment and repeated delays in and missed doses of her hormone medication. The prison also denied her requests for a private shower and for body searches to be conducted by a female deputy. Deputies also refused to address her as a female, instead calling her mister, sir, and similar male terms.

The lower court originally dismissed the lawsuit on the grounds that the ADA excluded “gender identity disorders” from the definition of disability. The Fourth Circuit Court of Appeals reversed that decision and sent the case back to the lower court for further litigation. The Fourth Circuit or the U.S. Supreme Court may take up this case in the future if litigation continues.

In its opinion, the Court ruled that there is a difference between gender identity disorders, which are not covered by the ADA, and gender dysphoria. The first arguably pathologized being trans and is an outdated medical understanding, while the latter is defined as “clinically significant distress” experienced by some but not all transgender people, with symptoms that may include intense anxiety, depression, and suicidal ideation.

The legal effects of the decision are immediate and will directly impact South Carolina employers and businesses that qualify as places of public accommodation under Title III of the ADA. To avoid litigation and potentially significant damages, these businesses should update their policies and practices, including responses to requests for accommodation.

Gaffney Lewis, LLC works directly with employers to ensure they are compliant with the law, including decisions handed down by state and federal courts. Although the legal status of gender dysphoria is continuing to develop, we believe the best approach is one that aligns a company’s policies and practices with standing case law.

Our firm’s Employment Law practice is ready to help your business avoid unnecessary litigation by revising or adopting policies and procedures that comport with the current state of the law. In the event a lawsuit is brought against you, we’re prepared to defend your interests in court and use mediation and other alternative dispute resolution methods to settle matters without the need for trial.

To learn more about this recent decision or our firm’s services, give Gaffney Lewis, LLC a call.