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4th Circuit first to rule gender dysphoria a protected disability

Kesha Williams, a trans woman, went to Fairfax County’s jail in November 2018 and was housed in the men's facility. (Gigi Jackson)

The U.S. Court of Appeals for the 4th Circuit has become the first appellate court in the country to find that gender dysphoria is covered by the Americans With Disabilities Act, after a transgender woman sued Fairfax County for housing her with men during her time in jail.

“Being transgender is not a disability,” the court wrote in an opinion issued Tuesday, but “many transgender people experience gender dysphoria,” or distress over the discrepancy between their identity and their assigned sex. “A transgender person’s medical needs are just as deserving of treatment and protection as anyone else’s.”

The decision in the case of Kesha Williams comes amid a wave of legislation across the country limiting transgender youths from accessing medical treatment, discussing sex and gender in school, or playing on sports teams and using bathrooms that match their identity.

“When states have cut transgender people off from basic protections under law, we have seen federal courts step in to correct that,” said Jennifer Levi, director of the Transgender Rights Project at Gay & Lesbian Advocates & Defenders, which wrote an amicus brief in Williams’s case.

The case now goes back to District Court Judge Claude M. Hilton of the Eastern District of Virginia, who had ruled the lawsuit couldn’t move forward.

“We are excited to get back into court to vindicate Kesha’s rights,” Williams’s attorney, Josh Erlich, said in an email. “Critically, this holding applies to any individual seeking accommodations for gender dysphoria, including in employment, public accommodations, and in any other context in which the ADA provides disability protections.”

The Fairfax County Sheriff’s Office declined to comment on the ongoing litigation.

Williams, 41, was initially housed with women when she went to jail in Fairfax in 2018 after admitting to helping a drug-dealing boyfriend. But when she asked about the hormones she had been taking for the past 15 years, she was reclassified. Williams, who had not had genital surgery, was housed with men, referred to as male and searched roughly by men. She could not get a bra or consistent hormone treatment.

“Guys would watch me shower from the balcony,” Williams said in an interview earlier this year. “Nobody was helpful; I didn’t feel safe.”

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She contacted a lawyer before her six months in jail was up, saying she was worried for transgender people in the Fairfax jail.

“The next girl could really want to hurt herself, could kill herself,” she said.

But her case faced a major obstacle. In 1990, when the ADA was passed, “gender identity disorders not resulting from physical impairments” were specifically excluded. The first federal judge to hear Williams’s case found that exclusion meant she could not sue under the law. The appeals court disagreed, on several grounds.

First, the court found that “gender identity disorder” is different from gender dysphoria. The current Diagnostic and Statistical Manual of Mental Disorders eliminates “gender identity disorder,” defined as a desire to change sexes, and defines “gender dysphoria” as discomfort caused by a discrepancy between gender identity and assigned sex that not all transgender people suffer from and that can be mitigated by treatment.

“The obsolete diagnosis focused solely on cross-gender identification,” the court wrote, while gender dysphoria “concerns itself primarily with distress and other disabling symptoms, rather than simply being transgender.”

The identity exception was put into the ADA at the urging of conservative senators, one of whom called it “behavior that is immoral, improper, or illegal.” Other exceptions included kleptomania, pedophilia and pyromania.

Moreover, the court found that Williams’s disorder was physical; she treats her conditions medically, and some research has indicated dysphoria has genetic origins.

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Finally, if gender dysphoria were excluded from the ADA, the court ruled, it “would discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment.”

The court also found that Fairfax’s policy of classifying those detained according to genitalia appears to violate the Prison Rape Elimination Act (PREA), which bars sorting transgender people who are detained based on genitals alone.

“A policy that houses transgender inmates based solely on their genitalia puts transgender inmates at further risk of harm,” the court found, citing research showing that transgender women in male prisons are at much higher risk of sexual assault than other incarcerated people.

The opinion by Judge Diana Gribbon Motz was joined by Judge Pamela Harris; both are appointees of President Barack Obama. Judge A. Marvin Quattlebaum Jr., a Trump appointee, dissented in part, saying that while some of Williams’s claims could proceed under the Constitution, “when the ADA was signed into law, gender identity disorder was understood to include what Williams alleges to be gender dysphoria.” He also agreed with Hilton that the sheriff’s policy on transgender defendants showed enough care as to not be gross negligence, writing, “There are pros and cons for every possible approach.”

Prison systems housing inmates according to gender identity have faced pushback; a lawsuit in California alleges the state has put female prisoners at greater risk of sexual assault with its policy.

The D.C. Department of Corrections entered a settlement this year to change its policies regarding transgender people at the jail. A transgender woman in Maryland won a lawsuit in 2015 against a state prison under the PREA. A bill was introduced this year in the state legislature that would require transgender people to be housed according to gender identity, absent specific safety concerns, as some states have done; it did not pass.

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