Gender dysphoria covered by disability law, court rules

A federal ruling that gender dysphoria is covered by the Americans with Disabilities Act could help block conservative political efforts to restrict access to gender-affirming care, advocates and experts say.

A panel of the 4th U.S. Circuit Court of Appeals last week became the first federal appellate court in the country to find that the 1990 landmark federal law protects transgender people who experience anguish and other symptoms as a result of the disparity between their assigned sex and their gender identity.

The ruling could become a powerful tool to challenge legislation restricting access to medical care and other accommodations for transgender people, including employment and government benefits, advocates said.

“It’s a very important and positive ruling to increase people’s access to gender-affirming care,” said Rodrigo Heng-Lehtinen, executive director of the National Center for Transgender Equality.

The ruling is binding in the states covered by the Richmond-based 4th Circuit — Maryland, North Carolina, South Carolina, Virginia and West Virginia — but will inevitably be cited in cases in other states, said Kevin Barry, a law professor at Quinnipiac University.

The decision came in the case of a transgender woman who sued the Fairfax County sheriff in Virginia for housing her in a jail with men. The decision is not limited to transgender people challenging jail policies, but also applies broadly to all areas of society covered by disability rights law, including employment, government benefits and services and public accommodations, Barry said.

“This decision destigmatized a health condition — gender dysphoria — and it says that what Congress did in 1990 wasn’t OK,” Barry said.

The sheriff’s office did not respond to phone messages seeking comment.

Some Republican leaders who have led efforts to limit access to transition treatment for youths have labeled it a form of child abuse. Texas Gov. Greg Abbott this year, for instance, ordered the state’s child welfare agency to investigate reports of gender-affirming care for children as abuse.

A new rule in Florida restricts Medicaid coverage for gender dysphoria treatments for youths and adults. The state health agency previously released a report stating that puberty blockers, cross-sex hormones and sex reassignment surgery have not been proven safe or effective in treating gender dysphoria.

And Florida Gov. Ron DeSantis, who is widely touted as a potential 2024 Republican presidential candidate, recently tweeted that children should not be able to take puberty blockers “or mutilate their body by getting a sex change.”

But leading medical entities contradict those positions, Heng-Lehtinen said.

“This health care is under attack politically in a lot of the country, but medically all of the credible professionals involved — the American Psychiatric Association, the American Medical Association and others — have all recognized for years that this is essentially primary care,” Heng-Lehtinen said.

In the case before the 4th Circuit, Kesha Williams was initially assigned to live on the women’s side of the Fairfax County jail when she arrived in 2018.

Williams told the nurse she is transgender, has gender dysphoria and received hormone treatments for the previous 15 years. But after she explained that she had not had genital surgery, she said, she was assigned to the men’s section under a policy that inmates must be classified according to their genitals.

In her lawsuit, Williams said that she was harassed and that her prescribed hormone medication was repeatedly delayed or skipped. Deputies ignored her requests to refer to her as a woman and instead called her “mister,” “sir,” “he” or “gentleman,” she said. Her requests to shower privately and for body searches to be conducted by a female deputy were denied, she said.

A federal judge granted a motion by the sheriff’s office to dismiss the lawsuit, finding that because the Americans with Disabilities Act excluded “gender identity disorders not resulting from physical impairments,” Williams could not sue under the law.

A three-judge panel of the 4th Circuit reversed that ruling, sending the case back to U.S. District Court.

The 4th Circuit panel said in its ruling Aug. 16 that there is a distinction between gender identity disorder and gender dysphoria. The court cited advances in medical understanding that led the American Psychiatric Association to remove gender identity disorder from the current Diagnostic and Statistical Manual of Mental Disorders and to add gender dysphoria, defined in the manual as the “clinically significant distress” felt by some transgender people. Symptoms can include intense anxiety, depression and suicidal ideation.

The modern diagnosis of gender dysphoria “affirms that a transgender person’s medical needs are just as deserving of treatment and protection as anyone else’s,” Judge Diana Gribbon Motz wrote in the majority opinion.

Judge A. Marvin Quattlebaum Jr. dissented in part.

“Whether we focus on when Congress passed the ADA or look beyond to today, the distinction Williams attempts to draw between gender identity disorder and gender dysphoria fails,” Quattlebaum wrote.