When is gender dysphoria considered a disability under the ADA?

If you’ve ever wondered whether gender dysphoria can be considered a disability protected by the Americans with Disabilities Act, the goal of this research report is to help explain how that question might be answered. Unfortunately, we don’t have a definite answer at this time. We can get a better understanding by reviewing how laws are interpreted in the United States. The Legislative Branch of the US government created the Americans with Disabilities Act which was signed into law by the Executive Branch in 1990, but the Judicial Branch is responsible for determining how the law is interpreted. To understand if gender dysphoria can be considered a disability under the ADA, we need to understand more about the different aspects and context of this question.

What is gender dysphoria?

Gender dysphoria is the experience of distress that comes from a mismatch between one’s assigned gender at birth and the gender a person identifies with, and not all transgender people experience gender dysphoria.2  This sense of distress may be so intense that it can lead to depression and anxiety and have a harmful impact on daily life. As a result, gender dysphoria seems to fit the ADA’s definition of a disability because it can substantially limit daily life activities. However, if gender dysphoria is a “gender identity disorder that does not result from physical impairments,”1  the ADA excludes it from being considered a disability.

On January 9, 2024, the Department of Justice issued a statement of interest that provides additional clarification regarding gender dysphoria and its protection under the ADA. The U.S. Department of Justice indicates gender dysphoria falls within the ADA’s definition of disability due to the resulting clinical distress, as discussed above. In addition, gender dysphoria does not fall within the exclusion of gender identity disorder because it is not simply identifying as another gender but also includes clinically significant distress.2  While this recent statement from the Department of Justice seems to provide a bit of clarity, recent case law provides an additional perspective.

When is gender dysphoria considered a disability under the Americans with Disabilities Act?

Gender dysphoria can potentially be considered a disability under the Americans with Disabilities Act, but it’s not a question with a clear answer. There have been several court cases where the question of whether gender dysphoria is considered a disability has been presented and challenged. Looking at what happened in specific cases can give us clues
regarding how this question is being addressed.

The Fourth Circuit U.S. Court of Appeals concluded that gender dysphoria is not a gender identity disorder during the trial of Williams v. Kincaid. The court also established that gender dysphoria is protected if it results from “physical impairments,” and increasing scientific evidence shows that it can.3

Williams v. Kincaid (2022) is a landmark case which has opened the door for gender dysphoria being considered a disability under the ADA. Williams is a transgender woman with gender dysphoria who was incarcerated in Virginia. She is legally recognized as a woman by her home state of Maryland. While in custody, she was transferred from a female facility to a male facility where she experienced physical and emotional trauma and delayed hormone treatment. Williams was successfully able to convince the court that her gender dysphoria was a result of having physical impairments.

The decision of this case was appealed and brought to the Supreme Court of the United States for consideration. The Supreme Court elected to not review the case, although two Supreme Court Justices dissented with strong opinions, which contradict the findings of the lower court.4  The decision not to review is important because it implies that the higher
court finds no fault in the reasoning of the lower court. However, this decision keeps the debate alive because it does not create a national precedent set by the Supreme Court.

Have other courts considered gender dysphoria under the ADA?

Blatt v. Cabela’s Retail, Inc. (2017) is another case in the Third Circuit Federal District Court that concluded the ADA does not rule out gender dysphoria from being a disability.5  The court in this case reasoned that gender dysphoria was a disabling condition related to gender because it can substantially limit daily activities, including interacting with others, reproducing, and social and occupational functioning. This decision effectively opened the door for transgender people with gender dysphoria to challenge civil rights violations under the ADA.6  It is worth understanding that Blatt is not a binding legal precedent in all states because it only applies to a certain region of the country. It does provide a persuasive analysis of the issue that other courts can follow if they choose.

So there’s an agreement?

Well, no. In 2022, the Eighth Circuit Federal District Court concluded in Duncan v. Jack Henry and Associates that gender dysphoria is a gender identity disorder and is excluded from ADA protection.7  It is noteworthy that there were no constitutional claims brought up during this case, so there was no requirement to trigger a broader interpretation of the phrase “gender identity disorder.”

In 2023, the Tenth Circuit followed the reasoning from Williams v. Kincaid. This court concluded that gender dysphoria is not definitively excluded from the ADA under the language of the regulations. The judge in this case even went as far as to state “the court believes that discrimination based on gender dysphoria violates the ADA.” The judge also clarified that this is not “settled law.”8

What does that mean?

The judicial system interprets our laws. So far, many courts have concluded that it is possible for gender dysphoria to be considered a disability under the ADA. There have not been a lot of cases where people with gender dysphoria have successfully been able to seek protection from the ADA. However, in most of the unsuccessful cases, the person with gender dysphoria did not clearly link gender dysphoria with physical impairments. Many lower courts still allow for the consideration that gender dysphoria can be a disability under the ADA, but not all.

Can gender dysphoria be a disability under the ADA? In many cases it can, if it is the result of physical impairments, and it also depends on previous rulings of the Federal Circuit Court in one’s area. The answer won’t be universally clear until it goes before the Supreme Court.

^{The information in this summary was extracted from a Rapid Research Report conducted by Maeve Moynihan of the University of Denver Strum College of Law and Jill L. Bezyak, PhD, Professor from the University of Northern Colorado. The intent of summarizing the report was to broaden the audience who can benefit from the research by condensing and simplifying the language from the original report.}

• 2 a b Department of Justice, Statement of Interest of the United States, Doe v. Georgia Department of Corrections, https://www.justice.gov/d9/2024-01/doe_v_gdc_statement_of_interest_2024.01.08.pdf
• 1Americans with Disabilities Act, §12101
• 3Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR). American Psychiatric Association. 2022
• 4Williams, 45 F.4th at 770.
• 5Kincaid, 143 S. Ct. at 2414-15 (Alito, J., Thomas, J., dissenting).
• 6Blatt, 2017 WL 2178123 at *4.
• 7Gender Dysphoria Discrimination, The ADA Project (2019), https://www.adalawproject.org/gender-dysphoria-discrimination (last visited Jul. 20, 2023)
• 8Duncan, 617 F. Supp. 3d at 1054-57.