In a shocking and first-of-its-kind reading of a more than 30-year-old disability law, a federal judge ruled that the distress that results from a person feeling that he or she is the wrong sex is a disability that must be accommodated under the Americans with Disabilities Act.
If the opinion is left to stand, it would open the door for those who consider themselves transgender and feel clinically distressed to receive public accommodations in bathrooms, locker rooms, prisons, same-sex housing, and more.
U.S. Circuit Judge Diana Gribbon Motz of the Fourth Circuit Court of Appeals wrote the majority opinion for the divided three-judge panel in Williams v. Kincaid, holding that under the Americans with Disabilities Act, gender dysphoria is a “disability.” Judge Pamela Harris joined Motz’s opinion to form the majority.
The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, education, transportation, and in places that are open to the general public (public accommodations).
So, what is the practical impact of this decision? It means that those with gender dysphoria—an “incongruence between (someone’s) gender identity and assigned sex” that results in “clinically significant distress,” as the American Psychiatric Association defines it—are not only protected from discrimination because of that so-called disability, but they are entitled to reasonable accommodations for it.
In the case of former Fairfax County, Virginia, prisoner Kesha Williams, that “reasonable accommodation” should have, according to the court, included sending Williams (a biological male) back into the women’s prison. Williams had filed a disability discrimination claim against various prison employees alleging mistreatment while incarcerated.
However, in order to reach this conclusion, the majority had to clear one very big hurdle: the language of the ADA itself, which explicitly excludes:
(a) Homosexuality and bisexuality
For purposes of the definition of “disability” in section 12102(2)? of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter.
(b) Certain conditions
Under this chapter, the term “disability” shall not include—
(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.
Because the statute clearly eliminates disability protections for “gender identity disorder,” Motz engaged in a contorted legal analysis to determine that gender dysphoria was not actually a gender identity disorder. To reach that conclusion, she did not look to the statute’s language at the time of its enactment, but to a much more recent change on gender-related psychiatric diagnoses—one not envisioned, anticipated, or incorporated by the ADA’s original drafters in 1990.
Motz relied heavily on a change made by the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, or DSM-5, in 2013. The DSM-5 is the standard classification of mental disorders used by mental health professionals in the United States.
At that time, the APA replaced “gender identity disorder” with “gender dysphoria.” Because the change focused the diagnosis on the distress that some people who consider themselves transgender experience (and for which they may seek psychiatric, medical, and surgical treatments) instead of on a desire to be a gender other than the one they were born to, Motz determined that such a change was good enough to stretch the ADA well beyond the limits of what Congress determined it ought to originally bear.
In sum, the APA’s removal of the ”gender identity disorder” diagnosis and the addition of the ”gender dysphoria” diagnosis to the DSM-5 reflected a significant shift in medical understanding. The obsolete diagnosis focused solely on cross-gender identification; the modern one on clinically significant distress … Put simply, while the older DSM pathologized the very existence of transgender people, the recent DSM-5’s diagnosis of gender dysphoria takes as a given that being transgender is not a disability and affirms that a transgender person’s medical needs are just as deserving of treatment and protection as anyone else’s.
In sum: If you’re “distressed” about being transgender, then you’re entitled to all the accommodations you’d like in public life, whether in bathrooms, locker rooms, prisons, or same-sex housing. The illogical conclusion, of course, is that transgender individuals who might be perfectly at ease with their underlying biological sex are not entitled to accommodations at all. As to how this will play out in modern America, one thing is for sure: It will be messy.
The court has not only established the possibility that employers, schools, prisons, hospitals, and other entities will have to make judgment calls on when an accommodation is required and when it isn’t, it also creates a loophole for those who consider themselves transgender who might want to demand future accommodations but who may not, in reality, experience any distress at all.
In his well-reasoned dissent, Judge A. Marvin Quattlebaum pointed out that the case was really a matter of simple statutory construction, and that the majority’s ruling wasn’t supported by the law’s text when it was enacted.
As Williams notes, some organizations have removed the phrase gender identity disorder from their publications altogether and clarified that distress and discomfort from identifying with a different gender from the gender assigned at birth constitutes gender dysphoria, not a gender identity disorder. But even if Williams is correct about such changes in understanding, linguistic drift cannot alter the meaning of words in the ADA when it was enacted. And at that time, the meaning of gender identity disorders included gender dysphoria as alleged by Williams … Under basic principles of statutory construction, Williams’ ADA claim should be dismissed … [W]hen the ADA was signed into law, gender identity disorder was understood to include what Williams alleges to be gender dysphoria.
While the decision only directly covers those entities within the Fourth Circuit Court of Appeals (Virginia, North Carolina, South Carolina, Maryland, and West Virginia), the court’s opinion has fanned the flames of controversy over transgender rights on a greater scale. It is also a prime example of why textualism—the interpretation of the law based on the ordinary meaning of the words as they were understood at the time of the law’s enactment—matters.
This piece originally appeared in The Daily Signal