Gender Dysphoria Poised to Be New Disability Rights Battleground

The legal argument that gender dysphoria is covered by federal disability law is gaining ground, paving the way for broader employment protections for transgender workers.

Nearly a year ago, the US Court of Appeals for the Fourth Circuit became the first federal appeals court to tackle the issue. The court ultimately found that the Americans with Disabilities Act protects transgender people who experience distress caused by their gender identity not matching their sex assigned at birth.

The US Supreme Court last month declined to review the dispute, keeping the ruling in place and allowing federal district courts to continue to grapple with the question.

This emerging legal issue primarily has arisen in prisoner rights cases, where incarcerated transgender people alleged they’ve experienced unreasonable delays in medical treatment of gender dysphoria and were harassed by other inmates, said Quinnipiac University associate dean and disability law professor Kevin M. Barry.

But the rulings will eventually affect transgender and nonbinary workers who experience the condition, he said.

The Supreme Court’s 2020 Bostock v. Clayton County decision granted transgender workers protections against job discrimination under Title VII of the 1964 Civil Rights Act. But safeguards under the ADA would go a step further by requiring employers to provide reasonable accommodations such as leave for medical procedures or hormone therapy, said Barry, who has filed briefs on behalf of transgender rights groups challenging discrimination based on gender dysphoria.

Accommodations also could include modifying employer-sponsored health-care plans to cover medically necessary gender-affirming treatment, Barry said. Some employers don’t have these coverage exclusions, “but many do,” he said.

Slow Trend

The Fourth Circuit’s ruling came five years after a Pennsylvania federal judge issued a first-of-its-kind order in Blatt v. Cabela’s Retail Inc., finding in an employment case that the ADA protects transgender people against discrimination.

The law excludes certain “gender identity disorders,” which can be “interpreted narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have,” US District Judge Joseph F. Leeson Jr. said in his 2017 ruling.

Several other federal district courts—including in Georgia, Illinois, and Massachusetts—have similarly allowed ADA claims based on gender dysphoria to move forward.

“Gender identity disorders not resulting from physical impairments” aren’t covered by the ADA, but some courts have allowed claims that the plaintiff’s gender dysphoria resulted from physical causes.

The physical impairment theory “involves medical definitions and requirements that were in place when the ADA came about, and current understanding of how the conditions are looked at,” said Sheila Willis, a partner at Fisher & Phillips LLP.

“Importantly, the Fourth Circuit did not say that all instances of gender dysphoria or being a transgender individual automatically put you under the ADA. There must be some type of manifestation of the condition,” Willis said.

The plaintiff’s bar increasingly is using updated medical or psychiatric definitions of these conditions to build their ADA claim, Willis said.

But not all federal judges are on board with finding that gender dysphoria is covered by the ADA.

For example, an Alabama federal judge tossed a transgender worker’s suit against Northrop Grumman Systems Corp. after finding that gender dysphoria is expressly excluded as a covered disability under the ADA unless it’s the result of a physical impairment, and that the lawsuit didn’t allege that the worker’s need to transition between genders has a physical cause.

Proactive Measures

Meanwhile, LGBTQ+ rights advocates are relieved that the Supreme Court declined to take up the issue because the conservative majority “would have used this as yet another opportunity to limit the rights” of LGBTQ+ people, said Michelle Phillips, a principal at Jackson Lewis PC.

The court’s decision not to take the case prompted a scathing dissent by Justice Samuel Alito and joined by Justice Clarence Thomas, who said they would’ve decided the issue nationwide rather than waiting to see how lower courts will rule.

The Fourth Circuit’s ruling leaves a “looming threat of liability” over many, including employers, who will now face an “unending stream of lawsuits” until the question is resolved, Alito wrote.

But legal scholars said an uptick in litigation is unlikely. Only a handful of similar cases have been filed in the Fourth Circuit since that court’s ruling, Barry said.

“I don’t see this three-alarm fire Justice Alito is talking about,” he said.

Nevertheless, lawyers say employers should review their disability accommodation policies and ensure that transgender and nonbinary employees’ concerns are addressed in order to avoid potential liability.

“Even though only one circuit has looked at this issue and it covered a particular geographic area, employers must be thoughtful and function as if this is the law of the land,” Willis said.

“Given the stress that person is already experiencing, you want to minimize that, including educating the workforce and building awareness,” Phillips said. “Many people react in negative or discriminatory ways when they don’t have a clear understanding of what that person is going through.”