Gender Dysphoria and the ADA: An Employer’s Approach

One of the hot button topics in today’s culture is to what degree employers and society in general must modify centuries-old religious practices and perceptions to accommodate transgender individuals. A recent case from the 4^th Circuit United States Court of Appeals¹ has done away with “gender identity disorders” altogether and held that the clinical anxiety one often suffers because they do not identify with the gender with which they were assigned at birth—gender dysphoria—qualifies as a disability. Accordingly, the Americans with Disabilities Act (ADA), and likely most state laws, will now prohibit discrimination against a person because of their gender dysphoria.

What Is Transgender?

Regarding the transgender condition, WebMD states that it is a “general term that describes people whose gender identity, or their internal sense of being male, female, or something else, does not match the sex they were assigned at birth. By contrast, the term cisgender describes people whose gender identity aligns with the sex they were assigned at birth.”² In other words, transgender women were labeled as male at birth but identity as female. Transgender men were assigned female sex at birth but identify as male. But some transgender people don’t identify with a single gender and their gender identity combines both female and male elements. They may not feel like either gender. These transgender people are referred to “non-binary” or “gender queer.”³

4th Circuit Court of Appeals Holding

Kesha T. Williams was arrested and served six months jail. Kesha is transgender and was assigned the gender of male at birth but identifies as female. She still has male genitalia⁴ and suffers from gender dysphoria. She has been prescribed medications to help her regulate her hormones and cope with the clinical anxiety associated with being transgender. She was denied medications, put in with other males, and treated harshly by male inmates and jail staff because of her insistence that she was a woman. The jail staff, on the other hand, acting according to jail policies, treated her like any other man because of her genitalia.⁵ Kesha sued the jail and employees for discrimination under the ADA and similar laws.

The Plaintiff alleged in her Complaint that she suffers gender dysphoria, a “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.” Using modern medical and mental health consensus, the court concluded that “gender identity disorder” is no longer an existing condition under the DSM and therefore any mention of it in the ADA is now irrelevant. In other words, medical understanding has evolved and transgenderism itself is no longer considered to be a medical condition to be diagnosed. But “gender dysphoria,” the clinical distress that often results from transgenderism, is indeed a medical condition and a disability under the ADA. The court stated: “Put simply, while the older DSM pathologized the very existence of transgender people, the recent DSM-5’s diagnosis of gender dysphoria takes a given that being transgender is not a disability and affirms that a transgender person’s medical needs are just as deserving of treatment and protection as anyone else’s.”⁶

What Employers Need to Know

A minority of the US population is transgender with estimates ranging from 0.5% to 5% depending on age range,⁷ and less than that number of people suffer from gender dysphoria. Because these individuals have been historically marginalized, Courts have recognized being transgender as a protected class.⁸ Responding to this, there is a movement by some in our country to hasten cultural change by pushing the envelope to try to force lawsuits, because some employers’ personal beliefs are in stark opposition to transgenderism (such as some religious institutions).

Once an employee informs his/her employer that they suffer from a qualifying disability, the ADA requires an employer to engage in an interactive process to provide reasonable accommodations to someone with a disability. Thus, if an employee informs an employer that they have gender dysphoria, it would be wise for the employer to treat the person as any other employee with a disability.

This should be easy enough even for employers who fundamentally disagree with transgenderism and related conditions because gender dysphoria is considered a type of anxiety that certain people suffer from. Individuals with mental illnesses or conditions such as major anxiety and bipolar are already considered “disabled” under the ADA.⁹ Consequently, employees who seek reasonable accommodations for their gender dysphoria should be recognized with as much validity as an employee who is bipolar, blind or in a wheelchair.

Additionally, given the protected class and heightened scrutiny courts have applied to being transgender, employers should treat individuals who claim to suffer from transgenderism (and gender dysphoria) as they would treat other protected classes such as race, national origin, and gender (as it has historically applied to women). That means that employers should never discriminate against or take adverse action against someone because they are transgender. Moreover, employers should put forth the same efforts to assist and accommodate transgender employees as they would those who are disabled or even those who belong to classes who have been historically marginalized (women, blacks, aliens, etc.).

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¹ Kesha Williams v. Stacey Kincaid, et al., No. 21-2030; https://www.ca4.uscourts.gov/opinions/212030.P.pdf

² https://www.webmd.com/sex-relationships/what-is-transgender

³ Id.

⁴ One of the most difficult aspects of this issue in today’s culture is that many people do not recognize gender as a psychological condition, but rather a physical condition (or both). Thus, as the jail in Kesha Williams’ case did, many believe that gender relates directly to genitalia. The trend in the medical and legal communities however is that gender is purely psychological and therefore a “woman” can lack female DNA and genitalia altogether.

⁵ Kesha had not undergone surgery to remove her male genitalia.

⁶ (emphasis added).

⁷ https://www.webmd.com/sex-relationships/what-is-transgender

⁸ See: Grimm v. Gloucester County School Board , 972 F.3d 586, at 610 (4^th Cir. 2020).

⁹ This is also a reason for employers to treat those who suffer from gender dysphoria compassionately as they would those who suffer from other medical conditions.

Featured Image by Rebecca Sidebotham