Back in August 2022, the federal Fourth Circuit Court of Appeals, which covers South Carolina and a few other states, ruled that gender dysphoria qualifies as a disability under the Americans with Disabilities Act.
Quick Refresher on the ADA
This law applies to companies with 15 or more employees and prevents employers from discriminating against employees on the basis of their disabilities. A disability is defined broadly as a physical or mental condition that substantially limits one or more major life activities, such as walking, standing, lifting, gripping, concentrating, etc. Many, many of my ADA cases involve an employee asking for a reasonable accommodation for their disability and the company failing to provide the accommodation or firing the employee in retaliation for asking. Reasonable accommodations are ways that the employer can help the employee perform the essential functions of the job, even with the disability (like a stool for an employee who has trouble standing up for long hours). A failure to provide a reasonable accommodation can provide an employee with an ADA claim against the company. This cases are processed initially through the Equal Employment Opportunity Commission (EEOC) like other discrimination claims, and an employment lawyer can help you with that process.
Okay, Back to the Fourth Circuit Case About Gender Dysphoria
In Kincaid v. Williams, Plaintiff Kesha Williams was a transgender woman (born a male and identifying as a female) who experiences gender dysphoria, which the medical community recognizes as the distress that a person feels when their personal sense of gender and their sex assigned at birth do not match. Williams has received medical treatment (hormone treatment) for this condition for fifteen years. Unrelatedly, she was sentenced to six months in prison, and during that incarceration, she alleged she was subjected to discrimination and harassment based on her disability that gave rise to her claims.
The ADA has several statutory exceptions that are excluded from the definition of a disability, one of which is “gender identity disorders not resulting from physical impairments.” 42 U. S. C. § 12112(b)(1). However, the Fourth Circuit ruled in 2022 that gender dysphoria is different than a gender identity disorder and deals with different symptoms. Further, the definition of “disability” is extremely broad and is normally interpreted to increase protections for employees. The Fourth Circuit ruled, therefore, that gender dysphoria is a covered disability under the ADA.
U.S. Supreme Declined to Change the Fourth Circuit Decision
The case was appealed to the U.S. Supreme Court, but in June 2023, the Supreme Court declined to hear the case. That means the Fourth Circuit’s decision stands and remains applicable for South Carolina employees who have gender dysphoria. Other circuits across the country may rule differently on this issue in the coming years, and it’s always possible (even likely) that the U.S. Supreme Court will revisit this question in the future.
But for now, South Carolina employees who have been diagnosed with gender dysphoria have protection against discrimination and harassment based on that disability under the ADA.
If you have experienced this type of discriminatory or harassment, you can reach out to our office to discuss your situation in more detail.