Did you know that “gender dysphoria” may qualify as a “disability” under the Americans with Disabilities Act (“ADA”)?

The Fourth Circuit Court of Appeals recently considered whether “gender dysphoria” is categorically excluded from the definition of “disability” in the ADA. When the ADA was enacted in 1990, Congress excluded a list of diagnoses from the definition of “disability” in the Act, including a now obsolete class of diagnoses called “gender identity disorders.” In Williams v. Kincaid, one question before the Court was whether “Gender Dysphoria,” a more recent diagnosis, is a “gender identity disorder,” or whether it is instead a distinct diagnosis that falls outside the reach of the exclusions in the Act.

The disAbility Law Center of Virginia submitted an Amicus Brief arguing that gender dysphoria is a distinct diagnosis from the now obsolete “gender identity disorders.” The Fourth Circuit Court of Appeals agreed. The Court explained in its decision that gender dysphoria means the “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth. Individuals with gender dysphoria often benefit from medical treatment, including hormonal therapy.” The Court further explained that the “gender dysphoria” diagnosis is distinct from the now obsolete “gender identity disorders” because of its focus on clinically significant distress as the defining feature of the diagnosis, and not solely on gender identity itself. On June 30, 2023, the Supreme Court of the United States denied the defendant’s petition for Certiorari, which means that the Fourth Circuit Court of Appeal’s decision remains in effect.

It is important to note that transgender identity is not itself a disability. Additionally, not all transgender people are diagnosed with gender dysphoria or identify with the diagnosis. Pursuant to the Court’s decision in Williams v. Kincaid, however, those individuals with a gender dysphoria diagnosis are not excluded from the protections of the ADA in the Fourth Circuit of the United States, which includes the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia.