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Transgender Workers May Be Protected by ADA as Well as Sex Discrimination Rules

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The U.S. Supreme Court ruled in 2020 that transgender workers were protected by Title VII of the Civil Rights Act.  While the Civil Rights Act protects against discrimination, the Americans with Disabilities Act (ADA) not only protects against discrimination, but requires reasonable accommodations for disabled workers that do not constitute an undue hardship on the employer.  For the first time, a federal appeals court has ruled that transgender workers can be covered by the ADA as well as Title VII.  Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022) rehearing denied 50 F.4th 429 (4th Cir. 2022).  

The theory behind transgender workers being protected by the ADA is that many transgender employees suffer from gender dysphoria, the stress caused by a person's gender identity not matching that person's biological sex.  If a person has gender dysphoria, it may require an employer to provide reasonable accommodations on request, such as granting leave for medical procedures or hormone therapy, or modifications to bathroom or dress-code policies.

The reason the application of the ADA to gender dysphoria is so controversial is that the ADA excludes gender identity disorder from coverage, along with "transvestism, transexualism, pedophilia, exhibitionism, voyeurism, and other sexual behavior disorders."  The Fourth Circuit distinguished between gender identity disorder, which was not considered a disability when the ADA was passed, and gender dysphoria, which has been added to the Diagnostic and Statistical Manual of Mental Disorders.  The Fourth Circuit also said that gender dysphoria could not be excluded from the ADA to avoid the "serious Constitutional question" of whether the law's exception violates the Equal Protection clause of the Fourteenth Amendment.  The Fourth Circuit stated that the legislative history suggests the discriminatory nature of the exclusion.

Editor's Note: Obviously, the Fourth Circuit ruling is controversial, and there was a dissenting opinion in the ruling.  While there are a number of district court rulings consistent with the Fourth Circuit ruling, there are some district court rulings to the contrary.  Whether reasonable accommodation is required for a transgender worker is obviously the type issue that legal counsel is necessary.  

This article is part of our April 2023 Newsletter.

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