We just moved our daughter into college this week and are back home now. Now, the roller coaster begins. So far so good. One thing I did realize is that I now have about an extra 15 hours per week I calculated. My brother says that I should get a new hobby, but I already love legal writing. I do look forward to having the ability to do more trainings and to take on more matters.

 

When a case comes down, it usually doesn’t have much of a shelf life before people move on to other things. William v. Kincaid, here, is not such a case. I am still seeing people blogging on it, and I am still getting Google alerts on this case even though it came down August 16, 2022. By now, you may already know what this case is. The case is the Fourth Circuit published decision saying that gender dysphoria is protected under the ADA. There was also a statute of limitation question and the question of whether gross negligence had been sufficiently alleged. We are not going to focus on those two questions. Finally, there was a concurrence/dissenting opinion as well. As with the majority opinion, we will just focus on the ADA part of the concurrence/dissent. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that gender dysphoria is not covered by the gender identity disorder exclusion in the ADA; court’s reasoning that gender dysphoria in this case may very well be based upon a physical impairment; Judge Quattlebaum’s concurrence/dissent; and if I were on the panel and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Kesha Williams, a transgender woman with gender dysphoria who had not undergone trans feminine bottom surgery, spent six months incarcerated in the Fairfax County Adult Detention Center. Though prison deputies initially assigned her to women’s housing, they quickly moved her to men’s housing when they learned she was transgender. There, she experienced delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional misgendering and harassment by prison deputies. Following her release from the detention center, Williams filed a § 1983 action against the Sheriff of Fairfax County, a prison deputy, and a prison nurse alleging violations of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, the United States Constitution, and state common law. The district court dismissed the case, holding that the complaint failed to state grounds for relief with respect to some claims and that the statute of limitations barred others.

 

For those interested in the specific facts, the opinion goes into greater detail. Considering you are talking about a transgender inmate who had not undergone bottom surgery even though she had been on hormone for years, I can’t say any of things that happened to her were particularly surprising.

 

II

 

Court’s Reasoning That Gender Dysphoria Is Not Covered by the Gender Identity Disorder Exclusion in the ADA

 

  1. The ADA, 42 U.S.C. §12211(b), excludes from the ADA coverage transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorder not resulting from physical impairments, and other sexual disorders as well as compulsive gambling, kleptomania, pyromania, or psycho active substance use disorders resulting from current illegal use of drugs.
  2. In 2008, Congress amended the ADA and stated that the ADA needs to be construed in favor of broad coverage of individuals to the maximum extent permitted. They also said that courts need to construe the ADA as amended as broadly as possible, which also means that courts must construe the exclusions narrowly.
  3. The text of the ADA does not define the term gender identity disorders and does not mention gender dysphoria at all.
  4. Looking at the meaning of the ADA’s terms at the time of its enactment, leads to the conclusion that gender identity disorders did not include gender dysphoria.
  5. In 1990, the medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition.
  6. In 2013, the American Psychiatric Association decided to remove gender identity disorders from the DSM manual. At the same time it added a diagnosis of gender dysphoria, which did not exist as a diagnosis in 1990.
  7. The very fact of revision mean that a meaningful difference exists between gender identity disorder and gender dysphoria and that difference is more than just semantic. In fact, the definition of gender dysphoria differs dramatically from the now rejected diagnosis of gender identity disorder. Rather than focusing on gender identity, gender dysphoria focuses on clinically significant distress felt by some of those experiencing an incongruence between the gender identity and their assigned sex. In a footnote, the court notes that WPATH (World Professional Association for Transgender Health), standard also focuses on the discomfort or distress caused by a discrepancy between a person’s gender identity and the persons assigned sex at birth.
  8. Being trans alone does not sustain a diagnosis of gender dysphoria under the DSM 5 as a code for a diagnosis of gender identity disorder under the earlier versions of the DSM.
  9. The Fourth Circuit and other courts have explained that a diagnosis of gender dysphoria unlike that of gender identity disorder concerns deals primarily with distress and other disabling symptoms rather than simply being transgender.
  10. Not only are gender identity disorder and gender dysphoria characterized by different symptoms, they affect different populations. That is, gender dysphoria is a disability suffered by many but certainly not all transgender people, since many transgender individuals are completely comfortable living with an incongruence between the gender identity and their assigned sex.
  11. Gender nonconformity is not in itself a mental disorder.
  12. The ADA excludes from its protection anything falling within the plain meaning of gender identity disorders as the term was understood at the time of its enactment. However, nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a gender identity disorder excluded from ADA protection.
  13. Given Congress expressed instruction that courts construe the ADA in favor of maximum protection for those with disabilities, it is not proper to adopt an unnecessarily restrictive reading of the ADA. To do otherwise would mean that the court would pencil in a new condition into the list of exclusions in the ADA. It would also erase Congress’ command to construe the ADA as broadly at the text permits.
  14. A growing number of district courts have reached the conclusion that gender dysphoria and gender identity disorder are not at all the same thing.

 

III

Court’s Reasoning That Gender Dysphoria in This Case May Very Well Be Based upon a Physical Impairment

 

  1. The ADA does not define the phrase, “physical impairments.”
  2. EEOC has promulgated regulations, 28 C.F.R. §35.108(b)(1)(i), defining the term expansively as any physiological disorder or condition affecting one or more body systems, such as neurological and endocrine. The court must defer to the EEOC’s reasonable interpretations of ambiguous terms in the ADA.
  3. Plaintiff has alleged sufficient facts to render plausible the inference that her gender dysphoria results from physical impairments. In particular, she alleged that medical treatment for her gender dysphoria consisted primarily of hormone therapy that she used to effectively manage and alleviate the gender dysphoria she experienced. She also alleged that she had received that medical treatment for 15 years.
  4. In her complaint, she stated that gender dysphoria for her required hormone treatment. In fact, she said as much in her complaint upwards of 10 times. In her complaint, she explained that hormone treatment enabled both feminization or nationalization of the body and said that without it (the prison failed to provide that treatment), she experienced emotional, psychological, and physical distress. These allegations sufficed to raise the reasonable inference that plaintiff’s gender dysphoria resulting from the physical impairment.
  5. Medical and scientific research identifies a possible physical basis of gender dysphoria, and the DOJ has agreed that this emerging research renders the inference that gender dysphoria has a physical basis sufficiently plausible to survive a motion to dismiss.
  6. Courts typically lacks sufficient expertise in physiology, etiology, psychiatry, and other potentially relevant disciplines to determine the cause or causes of gender dysphoria. So, dismissing a case based on such unknowns is wholly premature and speculative.
  7. Statutes should be interpreted to avoid a serious constitutional question.
  8. The court has little trouble concluding that a law excluding from ADA protection both gender identity disorders and gender dysphoria discriminates against transgender people as a class in violation of the equal protection clause of the 14th
  9. The Fourth Circuit has held that intermediate scrutiny applies to laws discriminating against transgender individuals. Accordingly, such laws fail unless they are substantially related to a sufficiently important governmental interest. Further, to survive intermediate scrutiny the state must provide an exceedingly persuasive justification for the law.
  10. One does not need to look too closely to find evidence of discriminatory intent toward transgender people in the enactment of §12211(b). The evidence of such intent include: 1) the provision listing gender identity disorders appears alongside pedophilia, exhibitionism, and voyeurism. Such a grouping implicitly brands all transgender individuals as equivalent to criminals thereby making it more difficult for them to be treated in the same manner as everyone else; and 2) the legislative history of the ADA reflects the moral judgment implicit in that list. In fact, Senator Helms specifically mentioned on the floor that people in wheelchairs were one thing but how in the world can you not exclude transvestites? Senator Armstrong said something similar as well.
  11. By carving a safe harbor for discrimination out of broad antidiscrimination protections, the ADA exclusion bears a striking resemblance to the Colorado law at issue in Romer v. Evans, which repealed municipal antidiscrimination ordinances to the extent they prohibited discrimination on the basis of LGB conduct practices or relationships.
  12. In Romer, the Supreme Court held that laws of that kind raise the inevitable inference that the disadvantage imposed born of animosity toward the class of persons affected.
  13. The Fourth Circuit has previously recognized that the ADA’s exclusion of gender identity disorders itself is evidence of such discriminatory intent.
  14. In light of the basic promise of equality animating the ADA, there is no legitimate reason why Congress would intend to include from the ADA’s protections transgender individuals suffering from gender dysphoria.
  15. The only reason for the exclusion that can be gathered from the text and the legislative record is a bare desire to harm a politically unpopular group, which simply cannot constitute a legitimate governmental interest.
  16. There are two ways to avoid the serious constitutional question. First, the argument that gender dysphoria does not constitute a gender identity disorder for purposes of the ADA exclusion. Second, the argument that gender dysphoria results from a physical impairment. Plaintiff has properly alleged both of those claims.

 

IV

Judge Quattlebaum Concurrence/Dissent

 

Judge Quattlebaum concurs in the majority’s decision concerning the district court’s dismissal on statute of limitations grounds. He also concurs in remanding the Eighth Amendment deliberate indifference claim against Wang, the Fourteenth Amendment Equal Protection claim against Garcia and the gross negligence claim against Wang. He also agrees with the majority that the district court erred in concluding that Garcia followed the prison’s policies and, therefore, could not have committed gross negligence as a matter of law and joins with the majority in remanding that claim as well. And because the district court granted Sheriff Kincaid’s motion for summary judgment as to the gross negligence claim based on the theory of respondeat superior as to Garcia’s conduct, he would likewise vacate and remand that portion of the order as it relates to Sheriff Kincaid.

 

  1. As noted in the majority opinion, the ADA specifically excludes, “gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.
  2. The ADA does not define gender identity disorders. For that matter, the phrase has not been interpreted by the Supreme Court or any of the other circuit courts. Accordingly, one has to look to the understanding of gender identity disorders at the time the statute was written, 1990.
  3. In 1990, the DSM was in the third, revised edition. That edition of the DSM provided that the essential feature of gender identity disorders was an incongruence between the assigned sex and gender identity. It added that even in mild cases of gender identity disorder, discomfort and a sense of inappropriateness about the assigned sex are experienced. In fact, the first diagnostic criteria for gender identity disorder under the DSM at the time was persistent or recurrent discomfort and a sense of inappropriateness about one’s assigned sex.
  4. Plaintiff’s allegations that referred to discomfort or distress caused by the discrepancy between her gender identity and her sex assigned at birth would have fallen into the gender identity disorder exclusion as understood at the time the ADA was written.
  5. Even accepting plaintiff’s allegations as true does not require turning a blind eye to the plain language of the statute. It also does not permit the plaintiff to use a word and declare it means just what the plaintiff chooses to have it mean.
  6. From 1990 to today, gender identity disorder has been understood to include distress and discomfort from identifying as a gender different from the one assigned at birth.
  7. In a footnote, Judge Quattlebaum notes that gender identity disorder and gender dysphoria are often cross-referenced or referred to as synonyms in a variety of different publications.
  8. The text of 42 U.S.C. §12211(b)(1) excluded gender identity disorders not resulting from a physical impairment. The plural use of the term “disorders,” should not be overlooked because it indicates that Congress considered this class to include more than one diagnosis. In fact, the DSM in effect at the time specified certain gender identity disorders and also included a category of gender identity disorders not otherwise specified.
  9. Whether gender dysphoria is a new diagnosis or replacement for gender identity disorder isn’t the point because the plain language of the statutory exclusion excludes gender identity disorders, which at the time included an alleged disability involving discomfort or distress caused by a discrepancy between one’s gender identity and the sex assigned at birth.
  10. To say that gender identity disorder did not extend to those who experience distress and discomfort from that identification is not consistent with the actual language of the DSM in effect at the time. It is also further undermined by consistent references to gender identity disorder and gender dysphoria in dictionary medical publication from 1990 to the present. It is also inconsistent with the statutory language excluding gender identity disorders contained within the ADA itself.
  11. Evidence exists that the DSM-5’s change from gender identity disorder to gender dysphoria primarily involved nomenclature so that it could avoid the stigmatizing effect of the existing nomenclature.
  12. Gender identity disorders meaning in effect at the time the ADA was enacted, and its evolution to the meaning of words and phrases does not modify the statute’s terms. It is the legislature with the responsibility of amending statutes and not courts or the APA or WPATH. That is, the focus must be on what gender disorders meant in 1990 and not what the American Psychiatric Association or other organizations have done since. Those organizations do not have the power to effectively modify statutes passed by Congress and signed into law by the president.
  13. Judicially modifying the meaning of a statute because of society’s changing attitudes not only invades the proper space for the legislature, it also turns a statute into a moving target.
  14. The amendments to the ADA are of no help because the policy of interpreting it liberally does not justify ignoring the plain words of limitation.
  15. The amendments to the ADA did not touch the exclusion of gender identity disorders in the ADA. Therefore, the understanding of that phrase from 1990 should be the guiding principle.
  16. The majority makes quite a big deal about avoiding a constitutional issue, but before you can even use that principle the statute itself must be ambiguous, which is not the case. Further, the constitutionality of §12211(b) has not properly been brought before the court as the plaintiff did not plead that issue or raise it before the district court.
  17. With respect to the equal protection issue, plaintiff did not raise that issue before the district court. So, no record was developed about whether the exclusions are discriminatory, the government’s interest in the exclusions, or the relationship of the exclusions to those governmental interests.
  18. The court should not wade into a constitutional question on its own when it was never presented to the district court.
  19. Plaintiff’s reliance on gender identity disorder being sufficiently alleged because of physical impairment does not help her either. In particular, the amended complaint does not identify any part of plaintiff’s body that is impaired or how or why it became impaired. She does not even allege a physical impairment generally.
  20. Plaintiff’s allegation that an individual with gender dysphoria may require feminization or masculinization of the body through hormone therapy and/or surgery in order to effectively alleviate or treat the condition does not imply the existence of a pre-existing physical impairment. At most, it implies that hormone therapy and/or surgery may be helpful to treat the condition.
  21. 12211(b)(1) requires that a person’s gender identity disorder result from a physical impairment. That means the physical impairment has to come first.
  22. What Williams really seems to be arguing is that for transgender individuals experiencing stress and discomfort about their gender incongruity, the physical impairment is that for those individuals were assigned a gender at birth and have the accompanying physical characteristics different from the gender that they identify with. However, that cannot be an impairment for purposes of the exclusion because it would read “not resulting from physical impairment,” out of the statute. After all, anyone with a gender identity disorder or gender dysphoria under the respective diagnostic statistical manual was born with physical characteristics differing from the gender they identify with.

 

V

If I Were on the Panel and Thoughts/Takeaways

 

  1. If I were on the panel, I would agree with both the majority and the dissenting opinion. I would agree with the majority with respect to a question of fact being present that the plaintiff has a physical impairment that needs investigating for the reasons laid out by the majority in its opinion. Particularly significant, is that the plaintiff had been on hormone therapy for 15 years and that therapy worked very well for her. I would agree with the dissent, that gender dysphoria must have been included within the definition of gender identity disorders at the time the ADA was enacted for the reasons laid out by the dissenting opinion. I would also agree with the majority that the gender identity disorder exclusion from the ADA is undoubtedly unconstitutional. As a result of Bostock, which we discussed here, transgender individuals, as noted by the majority, fall within an intermediate scrutiny class. As the majority opinion discusses, prejudice was clearly a big factor in the gender identity disorder exclusion. Between the legislative history and Bostock, there is little doubt in my mind that the gender identity disorder exclusion is no longer constitutional.
  2. Both the majority and dissent agree that the exclusion must be viewed as it existed in 1990. However, they reach opposite conclusions from there.
  3. The decision came down August 16, 2022. So, it is simply too early to tell what is next. It wouldn’t surprise me to see a rehearing en banc petition filed. I set a law 360 alert for this case. Today, 8/31/2022, it alerted me that the individuals sued in the case did request an en banc rehearing.
  4. Transgender and being gay or lesbian are undoubtedly subject to intermediate scrutiny in light of Bostock. Persons with any other disability may be subject to rational basis scrutiny or not in light of Board of Trustees of the University of Alabama v. Garrett and Tennessee v. Lane. For a group of individuals that silo terribly, which people with disabilities do, it is unfortunate that equal protection jurisprudence now sets persons with disabilities against each other.