New England Biz Law Update
DEPOSIT PHOTOS
The U.S. Department of Justice (DOJ) has filed a statement of interest asserting that gender dysphoria is covered under the Americans with Disabilities Act (ADA), a move that could impact how employers handle accommodations and discrimination claims from transgender employees.
The DOJ’s filing, submitted in the case of Jane Doe v. Georgia Department of Corrections, argues that while the ADA excludes “gender identity disorder” and “transsexualism,” these terms refer to the mere fact of identifying with a different gender than one’s sex assigned at birth. In contrast, gender dysphoria — a distinct diagnosis characterized by clinically significant distress or impairment — falls within the ADA’s definition of a disability.
From the DOJ statement: “Gender dysphoria is different from being transgender; it is a serious medical condition experienced by some transgender individuals and appears as a diagnostic category in the [American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders] DSM-5-TR…. Left untreated, individuals with gender dysphoria can experience significant adverse health outcomes, including risks for suicidality and surgical self-mutilation.”
Background
Jane Doe, a transgender woman diagnosed with gender dysphoria, is currently incarcerated in a men’s prison in Georgia. Despite recommendations from multiple healthcare providers, the Georgia Department of Corrections (GDC) has allegedly refused to provide Doe with gender-affirming surgery due to a “blanket ban” on such care.
Doe filed suit against GDC in December 2023, alleging violations of the ADA and Eighth Amendment.
In its statement of interest, the DOJ contends that excluding gender dysphoria from the ADA would contradict Congress’s intent for the statute to be interpreted broadly. Furthermore, the DOJ maintains that the Eighth Amendment requires prisons to provide adequate, individualized medical care for serious conditions like gender dysphoria.
Courts have recognized that gender-affirming surgery may be medically necessary in some cases. Therefore, the DOJ argues, categorically denying such surgery to all prisoners with gender dysphoria, regardless of individual medical need, constitutes “deliberate indifference to a substantial risk of serious harm” in violation of the Eighth Amendment.
Following the 4th Circuit
The DOJ’s statement follows a landmark 2022 ruling by the 4th U.S. Circuit Court of Appeals, which held that gender dysphoria is covered under the ADA. Although this ruling only applies in that circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia, the DOJ is now urging the federal court in Georgia to reach the same conclusion. (The U.S. Supreme Court declined to review the 4th Circuit’s decision in 2023.)
Depending on the outcome, protections for transgender individuals with gender dysphoria could expand under federal disability law.
This interpretation could require employers to provide reasonable accommodations for employees with gender dysphoria and bolster legal recourse for those facing adverse employment actions due to their condition.
