Earlier this month, the US Court of Appeals for the Fourth Circuit issued a ruling that gender dysphoria—defined as “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth,” according to the World Professional Association for Transgender Health (WPATH)—qualifies as a disability under the Americans with Disabilities Act (ADA).
Though the case focused on how an individual was treated in a prison, not a workplace, it will have implications for HR. The ruling applies to all employers under the Fourth Circuit’s jurisdiction with 15 or more employees, including state and local governments.
What happened? A transgender woman named Kesha Williams sued Virginia’s Fairfax County and several jail personnel, alleging her medical treatments for gender dysphoria were delayed while she was incarcerated, and that this violated the ADA, among other laws.
The district court first ruled in favor of the county in 2021, which argued that gender dysphoria does not fit the ADA’s definition of disability, which excludes “gender-identity disorders not resulting from physical impairments.” The higher court, however, reversed that decision, reasoning that the exclusion is outdated.
When the exclusion was written—in 1990, the year the ADA passed—gender dysphoria fell under the American Psychiatric Association’s (APA) definition of gender identity disorder (GID). This term was removed by the APA in 2012. As Judge Diana Gribbon Motz wrote in the court’s opinion, “advances in medical understanding” suggest “the definition of gender dysphoria differs dramatically from that of the now-rejected diagnosis of ‘gender identity disorder.’”
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What’s the impact? The court joins five other district courts that have previously come to the same conclusion. Still, this is a landmark case because the Fourth Circuit is the highest court to weigh in on the issue to date. The ruling will immediately hold for people and businesses in Maryland, North Carolina, South Carolina, Virginia, and West Virginia, and could provide precedent for other courts around the country.
What does it mean for HR? For HR teams operating in the Fourth Circuit, Michelle Phillips, principal at employment law firm Jackson Lewis, said, “the greatest takeaway is that employers need to be mindful and careful and deliberate in how they deal with gender transitions.”
A “mindful and thoughtful” approach, she said, will involve providing reasonable accommodations for employees experiencing gender dysphoria, such as ensuring access to restrooms and facilities that are consistent with their gender identity, or changing pronouns in HRIS and other internal systems that “don’t require a legal change.”
Phillips also recommends incorporating gender-identity training into disability and inclusion training so that employees experiencing gender dysphoria don’t “become the poster child [who has to] answer all things relating to gender identity.”
“People are going to mess up,” Phillips said. “So, it’s incumbent upon the employer to do that education.”—SV
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