A U.S. Fourth Circuit Court of Appeals ruled this week it will no longer revisit the matter of protections for gender dysphoria under the American Disabilities Act (ADA), following the case of Kesha Williams, a transgender woman who took legal action against authorities of a Fairfax jail in Virginia. 

In a starkly split 8-7 vote, the court opted to uphold gender dysphoria, and the symptoms that lead to a disability, as a protected right under the ADA, dispensing with the semantic concerns raised by the dissent. 

“This is not just a ‘linguistic drift,’” the majority opinion read. “Gender dysphoria is a diagnosable condition whose definition is much narrower than, and separate from, the definition of ‘gender identity disorders’ in 1990,” the opinion continued, while additionally emphasizing Congress’ goal that the ADA provide broad protections for individuals. 

The majority opinion went on to say that Williams’ case successfully represented harm that resulted from access to medication, which contributed to her impairments. They emphasized the ruling “faithfully applied Congress’ mandate” to apply protections broadly by looking “narrowly” at the outlined exclusions which would disqualify an individual from protection under the ADA. 

But the dissenting minority disagreed, pointing to an insufficient evaluation of gender dysphoria as a diagnosis, arguing it did not merit protection based on semantics. 

“Based on that linguistic drift, this circuit has decided that the same stress and discomfort from identifying with a gender other than the one assigned at birth was excluded from the ADA as a ‘gender identity disorder,’” the minority opinion said. 

This assessment also stemmed from the American Psychiatric Association’s adoption of gender dysphoria since, before 2013, it did not exist as a diagnosis and was categorically lumped in with gender identity disorder. 

Gender identity disorder exclusions from ADA protections include “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders.”

APA’s old definition carried a stigma surrounding the weight of an individual’s struggle with their identity and ignored severe physical impairments that occurred as a result. According to the APA, a gender dysphoria diagnosis not only eliminates the stigma but encompasses a more full experience of an individual’s struggle with their gender. 

“Let me be clear. All individuals, including those with gender dysphoria, deserve to be treated with dignity, respect and kindness. And there may be a legitimate debate about the wisdom of the ADA’s exclusion as well as other related policy matters,” the minority opinion argued. 

At the time of her incarceration in 2018, Williams, 41, was transferred to a male inmate facility after she disclosed her identity to a jail nurse. Upon being transferred to Fairfax County Jail, Williams was the direct recipient of physical and verbal abuse at the hands of corrections officers who routinely referred to her as “sir” and “mister.” 

Williams was additionally denied the intervention of a female deputy, and was subject to a forceful physical check, despite one being readily available. 

“Sir, you are a male and I need to search you,” a deputy officer told Williams, according to court documents.

In 2020, Williams sued unsuccessfully at a district court but later won an appeal in a Richmond U.S. Court of Appeals that reversed the lower court’s decision. 

"Ms. Williams is excited to get back to court and vindicate her rights," Joshua Erlich, the lawyer on Williams’ case, told Reuters. The latest decision allows Williams to continue her lawsuit against officials at Fairfax county jail.

The dissent maintains the ruling is a “judicial modification” of protections outlined in the ADA. As I said in my panel dissent, those issues are, or at least should be, outside of our job descriptions as judges,” the minority opinion said. 

“My position is about what the ADA says — not what it should say or should not say,” it concluded.