Some Courts are Finding that a Gender Dysphoria Diagnosis Entitles Individuals to Legal Protections Under the ADA
March 7, 2024
Overview
Anti-LGBTQ legislation across the country is at an all-time high. These laws and the prejudice they reflect have negative impacts on the health and wellbeing of gender diverse people. Recently, plaintiffs have successfully challenged some anti-transgender laws under the Americans with Disabilities Act. A recent case serves as an example of this novel approach and its potential to have a wide-sweeping impact on rights for people who are transgender, people who are disabled, and those who share both identities.
In recent years, anti-LGBTQ legislation across the country is at an all-time high. Current issues particularly affecting people who are transgender include access to gender affirming care (especially among youth and people who are incarcerated), inclusion in schools (related to sports and bathrooms), workplace discrimination, and access to legal identification documents. These laws and the prejudice they reflect have negative impacts on the health and wellbeing of gender diverse people across the nation, such as contributing to poor mental health, a high likelihood of avoiding health care appointments, and medical providers fleeing states with anti-transgender laws for fear of legal retaliation.
In response, transgender rights advocates have filed lawsuits challenging discriminatory laws and have proposed legislation to support equitable treatment of individuals who are transgender. Recently, plaintiffs have successfully challenged some anti-transgender laws under the Americans with Disabilities Act (ADA). This article briefly explores this relatively novel application of the ADA and examines its application in a recent case, Williams v. Kincaid.
The ADA, as amended, prohibits discrimination based on disability in employment, public services, public accommodations, telecommunication services, and transportation. For example, the law bars state and local public entities from “den[ying] the benefits of services, programs, or activities” to or discriminating against any individual because of their disability. The Act is also one of the primary federal laws protecting individuals with disabilities from discrimination by, for example, private employers, insurers, and health care providers. Similarly, the federal Rehabilitation Act (RA) prohibits disability-based discrimination by federal entities and entities receiving federal funds. Distinct from many other anti-discrimination laws, such as the Civil Rights Act of 1964, the ADA and RA create a positive obligation for covered entities to provide accommodations, rather than only prohibiting discrimination. Due to these unique qualities, the ADA and RA have potential implications for access to and affordability of gender affirming care and related medically-necessary accommodations.
The ADA broadly defines disability as “(i) a physical or mental impairment that substantially limits one or more major life activities…; (ii) a record of such an impairment; or (iii) being regarded as having such an impairment….” Some advocates (and the Department of Justice) have argued that gender dysphoria, a diagnosis that has been included in the Diagnostic and Statistical Manual of Mental Disorders (DSM) since 2013 and refers to “psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity,” is a disability protected under the ADA. Opponents argue that gender dysphoria was specifically excluded from the definition of disability when the law was drafted in 1990, along with a narrow list of “sexual behavior disorders” including “gender identity disorders not resulting from physical impairments.” However, given the statute’s broad definition of disability and Congress’s direction via the 2008 ADA amendments to broadly construe the definition of disability, a growing number of courts have found that gender dysphoria is distinct from gender identity disorder and is protected under the ADA and RA. (Note that the Rehabilitation Act defines disability nearly identically to the ADA, so courts typically apply the same legal analysis when interpreting either law.)
The question of whether gender dysphoria constitutes a disability under the ADA and RA was central to the Fourth Circuit Court of Appeal’s 2022 analysis in Williams v. Kincaid. In November 2020, Kesha Williams filed a complaint in a Virginia federal district court asserting that she experienced discriminatory treatment while incarcerated based on her identity as a person who is transgender. Ms. Williams alleged that she was treated differently than individuals who are not transgender because she was denied necessary medical care and was required to reside in the men’s prison notwithstanding her gender identity, among other things. She alleged violations of the ADA, RA, U.S. Constitution, and state law. In support of her ADA and RA claims, Ms. Williams argued that she experienced discrimination based on her gender dysphoria diagnosis. The Court affirmed that transgender people who suffer from gender dysphoria are protected under the ADA and RA.
In its analysis, the Fourth Circuit underscored that Congress’s 2008 ADA amendments directed courts to construe the ADA as broadly as possible and make it easier for people with disabilities to obtain protections. The Court went on to recognize that gender dysphoria and the excluded “gender identity disorder” are characterized by different symptoms – specifically, gender dysphoria primarily concerns distress rather than simply being transgender. The Court clarified that the two terms also refer to different populations: gender identity disorder referred to all people who were gender diverse and gender dysphoria impacts only the subset of people who experience symptoms of distress. The Court then considered Ms. Williams’ gender dysphoria and found that her diagnosis may have a physical basis, further justifying protection under the ADA. Finally, the Court observed that reading the ADA’s exclusion language to exclude both gender identity disorders and gender dysphoria would discriminate against people who are transgender as a class, potentially violating the Fourteenth Amendment’s Equal Protection Clause. The Court explained that the ADA’s legislative history implies the presence of moral judgment and animus in excluding gender identity disorders rather than legitimate justifications for exclusion.
In summer 2023, Williams v. Kincaid was appealed to the Supreme Court. The Supreme Court denied certiorari, meaning the Supreme Court Justices decided that they would not review the Fourth Circuit decision, and so they neither affirmed nor reversed the decision. But Justice Alito, joined by Justice Thomas, published a dissent to that decision, opining that the Court should have taken the case and questioning the Fourth Circuit’s conclusion regarding the ADA. A Supreme Court decision that rules on this question would have wide-sweeping impact on rights for people who are transgender, people who are disabled, and those who share both identities.
This article was developed by Marisa London, Student Legal Researcher, Network for Public Health Law – Mid-States Region and J.D./M.P.H. Candidate, University of Michigan (2025). The post was reviewed by Colleen Healy Boufides, J.D., Co-Director, Network for Public Health Law – Mid-States Region.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.