Gender Dysphoria Now Qualifies as a Disability Under the ADA in Certain States

By Liz Hartsel

On August 16, 2020, the Fourth Circuit Court of Appeals declared that gender dysphoria–a sense of distress that a person whose gender identity differs from their sex assigned at birth may feel—can quality as a disability under the Americans with Disabilities Act (“ADA”). In doing so, the Fourth Circuit was the first appellate to rule on this issue. The Court’s decision immediately impacts employers in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Other courts could agree with this precedent, but they are not obligated to do so.

The Fourth Circuit determined that gender dysphoria is distinct from the “gender identity disorders,” which is explicitly excluded from the ADA. The Court based this decision, in part, on “Congress’ express instruction that courts construe the ADA in favor of maximum protection for those with disabilities[.]”

Not all transgender people experience gender dysphoria. Transgender and gender-diverse people who seek protection under the ADA—including reasonable accommodations— must show that they are being treated for gender dysphoria. Reasonable accommodations may include leaves of absence for gender-affirming surgery or counseling, restroom usage, dress codes, and housing.

Employers must ensure transgender and gender-diverse staff are treated with respect and must work to ensure that situations that may lead to harassment and discrimination are avoided, regardless of whether the employer is situated in one of the states specifically referenced above.

If you have questions about accommodations required under the ADA and how to ensure compliance with the law, please reach out to a Fortis employment attorney for a consultation.

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