ADA Protection of Transgender Rights

Facts of the Case

Kesha Williams, a transgender woman, was incarcerated at Fairfax County Adult Detention Center. Prior to incarceration, she was legally considered to be a woman in her home state, and her driver’s license reflected her legal status as a woman. She was initially classified and housed as a female inmate. For 15 years prior to her incarceration, she had been receiving hormone therapy for gender dysphoria, but because she had not had transfeminine bottom surgery, she retained male genitalia. Upon disclosing this information to the prison nurse, Ms. Williams was reclassified as male and was transferred to men’s housing in compliance with the prison policy that “‘[m]ale inmates shall be classified as such if they have male genitals’ and ‘[f]emale inmates shall be classified as such if they have female genitals’” (Williams, p 764).

While incarcerated, Ms. Williams’ hormone therapy was delayed and she was persistently subjected to harassment by prison staff, who routinely referred to her as a man. Her requests for private showers and for body searches to be conducted by female deputies were denied. During one search of Ms. Williams’ housing unit, Deputy Garcia, a male prison staff member, conducted a “highly aggressive” body search that left Ms. Williams with several days of pain and bruising to her breast.

After her release, Ms. Williams sued Sheriff Kincaid of Fairfax County, the prison nurse, and Deputy Garcia, alleging violations of the ADA, the Rehabilitation Act, the Constitution, and Virginia common law. She additionally alleged gross negligence on the basis of the sheriff’s housing policy and the deputy’s aggressive body search. The district court dismissed these claims, reasoning that gender dysphoria was not protected under the ADA as it fell under the exemption of “gender identity disorders not resulting from physical impairments” (Williams, p 765). The court also dismissed the claims of gross negligence, stating that a policy to house transgender inmates based solely on genitalia demonstrated some degree of care, even if it was inadequate. It further ruled that the statute of limitations had passed for allegations against the deputy. Ms. Williams appealed.

Ruling and Reasoning

The U.S. Court of Appeals for the Fourth Circuit reversed the district court’s dismissal of Ms. Williams’ § 1983, ADA, Rehabilitation Act, Constitution, state common law, and gross negligence claims, and remanded the case back to the district court for further proceedings.

The court first considered Ms. Williams’ claim that the ADA’s exclusion for gender identity disorders not resulting from physical impairments does not apply to gender dysphoria. The court referred to Bostock v. Clayton County, 140 S. Ct. 1731 (2020), to consider the language “at the time of the statute’s adoption” (Williams, p 766). In 1990, the year the ADA was signed, the Diagnostic and Statistical Manual of Mental Disorders (DSM-III-R) was the primary psychiatric reference text and defined gender identity disorder as “an incongruence between assigned sex (i.e., the sex that is recorded on the birth certificate) and gender identity” (DSM-III-R, p 71). The court highlighted that the diagnosis of gender identity disorder was removed from the DSM-5 and replaced with “gender dysphoria,” which requires “clinically significant distress.”

The court emphasized that the DSM’s shift from the diagnosis of gender identity disorder to gender dysphoria reflects evolving medical understanding. Specifically, DSM no longer defines being transgender as an illness. Rather, only the subset of transgender individuals with requisite levels of distress can be diagnosed with gender dysphoria. Therefore, the court ruled, gender identity disorder is an “obsolete diagnosis” and no longer applies to transgender individuals.

Ms. Williams further argued that regardless of whether gender dysphoria qualifies as a “gender identity disorder,” her diagnosis was a result of physical impairments, and was therefore not exempt from ADA protections. She argued that whereas hormone therapy, an intervention that produces physical changes to the body, may be a treatment for gender dysphoria, her specific case of gender dysphoria requires hormone therapy for alleviation of distress. The court considered this argument plausible, additionally citing the Equal Employment Opportunity Commission’s definition of “physical impairments,” as it is not clearly defined in the ADA.

Because the court considered Ms. Williams to already have made two plausible arguments of ADA violations, and that the lower court had erred in its dismissal, it determined that her allegations of constitutional violations would not and should not be considered at this time. The court noted, however, that if a court ruled that gender dysphoria and gender identity disorder were both excluded from ADA protections, then such an exclusion would discriminate against transgender individuals as a class, and potential violation of the Equal Protection Clause of the Fourteenth Amendment would need to be considered. The court referenced the historical hostility toward transgender individuals as a significant reason why the gender identity exclusion was crafted in the first place.

Finally, the court looked at the dismissal of Ms. Williams' claims of gross negligence by Sheriff Kincaid and Deputy Garcia. The court began by noting “the standard for gross negligence in Virginia is one of indifference, not inadequacy” (Williams, p 178, citing Elliot v. Carter, 791 S.E.2d 730 (Va. 2016)).

The Fourth Circuit disagreed with the district court’s reasoning that prison housing based solely on genitalia constitutes some, albeit inadequate, care. It noted that Sheriff Kincaid employed additional policies that directed inmates to be housed according to a variety of factors, including safety and security needs. But Sheriff Kincaid also directed inmates to be housed solely on genitalia, overriding any additional factors that might have been considered. The court determined that the practical outcome of this policy is in violation of the Prison Rape Elimination Act (28 C.F.R. § 115 (2003)), which requires housing of transgender and intersex inmates be considered on a “case-by-case basis.” The court also cited the increased rates of sexual assault and violence toward transgender inmates in male prisons. The court agreed with Ms. Williams that having a policy in direct violation of federal law and which knowingly puts her at increased risk of harm could cross the line from inadequacy to gross negligence.

Regarding the allegation of gross negligence on behalf of Deputy Garcia, the court noted that he did not attempt to comply with a prison policy that would have only allowed him to search Ms. Williams if her gender were uncertain. He was fully aware that Ms. Williams was a woman. Combined with his use of force, the court determined that there was sufficient evidence that he did not display any degree of care, reversing the district court’s dismissal of gross negligence against the deputy.

Dissent

The dissent did not agree with the majority’s position that gender dysphoria was distinct from gender identity disorder, calling the change in nomenclature a mere “linguistic drift.” The dissent further noted that even if gender dysphoria is distinct from gender identity disorder, the ADA must be interpreted as intended at the time of its crafting, and the gender dysphoria which afflicts Ms. Williams would have been considered a gender identity disorder at that time. Finally, the dissent noted that Congress modified the ADA in 2008 and, in doing so, retained the gender identity disorder exclusion. Therefore, it said, the 1990 conceptualization of this exclusion should guide interpretation.