Gender Dysphoria Recognized As A Disability

A federal appeals court recently decided that a diagnosis of gender dysphoria is a disability covered by the Americans with Disabilities Act (ADA). While this decision does not directly apply in Nevada, it is important for employers to understand that the challenges faced by members of the transgender community may implicate more than Title VII of the Civil Rights Act.

The diagnosis of gender dysphoria was added to the Diagnostic and Statistical Manual of Mental Disorders (DSM) by the American Psychiatric Association (APA) in 2013. The DSM-5 currently defines “gender dysphoria” as the “clinically significant distress or impairment in social, occupational, or other important areas of functioning” felt by some who experience “a marked incongruence between one’s experienced/expressed gender and their assigned gender.” It does not apply to all transgender individuals, but only a subset of those who experience “clinically significant distress or impairment” and are diagnosed with gender dysphoria. 

The defendant in this non-employment case argued that gender dysphoria is not covered by the ADA because the law excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders,” as well as “compulsive gambling, kleptomania, . . . pyromania; or . . . psychoactive substance use disorders resulting from current illegal use of drugs.” But the court determined that gender dysphoria is not the same as “gender identity disorder” and is not, therefore, excluded from the ADA’s protections. Moreover, the court explained that gender identity disorder is no longer recognized as a diagnosis by the APA. 

The federal appeals court that decided this case, the Fourth Circuit Court of Appeals, has jurisdiction over Maryland, Virginia, West Virginia, North Carolina and South Carolina. It is possible that other courts may reach a different decision on gender dysphoria, and Nevada courts have not yet ruled on this issue. Nevertheless, employers should be aware of this case and understand that in some situations, it may be necessary to apply the ADA’s protections and reasonable accommodation requirements to a transgender employee.

KZA attorneys are always available to help you navigate these complicated legal issues and answer any questions you have about this case and/or the ADA. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.