Since a recent ruling on transgender rights out of the U.S. Court of Appeals for the Fourth Circuit that the Americans with Disabilities Act (ADA) covers gender dysphoria, many commentators have worried that trans activists may use it to overturn state laws that prevent administering puberty blockers or performing mastectomies, hysterectomies, and castration on minors.
A review of the ruling shows that it is not at all clear how the ADA would apply to a minor in the care of his or her parent or legal guardian. It is also unclear that the reasoning in the case would survive a challenge and does not address new onset gender confusion.
The plaintiff is an adult male who started hormone replacement therapy 15 years ago in order to appear female. Now named Kesha Williams, he has presented as a woman socially for more than a decade and possesses a Maryland driver’s license that identifies him as female. Williams was arrested in Virginia on drug-related charges and held for six months.
Williams alleged that jail staff did not provide him with his ongoing hormone replacement therapy during his incarceration. The jail housed him with male inmates, provided him with men’s clothing, and classified him as male on administrative paperwork after he told the prison medical staff he had male genitalia. At the time, the policy required that jailers identify and house inmates according to their physical characteristics. He also wanted a female deputy to perform body cavity searches. Williams filed a case under the ADA based on a diagnosis of gender dysphoria.
The ADA has several exclusions, including one for gender identity disorders. The district court had thrown out Williams’s case based on this exclusion. The appellate court ruling relied heavily on the Diagnostic and Statistical Manual (DSM), which defines the diagnostic criteria for all psychiatric disorders, on appeal.
The reasoning is laughable. The American Psychiatric Association published the DSM-IV in 1994. That version defined gender identity disorder as “a strong and persistent cross-gender identification (not merely a desire for any perceived cultural advantages of being the other sex).” The disorder could not be concurrent with a physical intersex disorder caused by a genetic defect and needed to cause a “clinically significant distress or impairment in social, occupational, or other important areas of functioning.”
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At the time, trans activists wanted the word “disorder” removed. They got their way. In the DSM-V, which was released in 2013, the disorder is now called gender dysphoria. Many of the edits are a nod to political correctness. For example, this revision refers to “assigned gender” and tacitly implies there are more than two genders. It also defines the “persistent” requirement from the DSM-IV as six months. However, the crux of the diagnosis is still a “clinically significant distress or impairment in social, occupational, or other important areas of functioning.”
Did the DSM-V expand the criteria primarily based on social justice jibber-jabber? Yes. However, the ruling says that because the latest version changed “gender identity disorder” to “gender dysphoria,” it signaled a significant change that nullified the ADA exclusion. The ruling also asserts that the DSM-V revision focused more on the psychological distress of gender incongruence. This position is absurd since the language defining the psychological impacts of gender issues is precisely the same in the two versions. It is also beyond ludicrous to assume that when Congress excluded “gender identity disorders” in the ADA, renaming the disorder as dysphoria should require a specific amendment.
The heavy reliance on the DSM makes the ruling narrower than the trans lobby wants you to believe. In response to the ruling, GLAD Transgender Rights Project Director Jennifer Levi said, “this opinion goes a long way toward removing social and cultural barriers that keep people with treatable, but misunderstood, medical conditions from being able to thrive.” The social and cultural barriers Levi is referring to are a mystery.
The ruling reverses the decision and remands it back to the district court, instructing it to incorporate a multi-factor analysis to determine the housing of transgender inmates. It also requires that the district court evaluate the claim that jail staff withheld medication under the appellate court’s interpretation of ADA and that the need for it arose from Williams’s perceived physical disability. It does not require that jails house trans inmates with the gender they identify with, nor does it require the state to consent to treat new-onset gender dysphoria. Williams’s physical transition preceded his incarceration by years.
The court also makes it clear that an individual must carry a gender dysphoria diagnosis to get around the ADA exclusion. That diagnosis is time-dependent and requires a significant social or functional impairment. In other words, to qualify under the ADA, a patient needs to have an actual disability. The APA is explicit on what constitutes a disability: “The presence of gender variance is not the pathology, but dysphoria is from the distress caused by the body and mind not aligning and/or societal marginalization of gender-variant people. It needs to be ego-dystonic [affecting one’s self-concept] to qualify as a diagnosis, and having a discussion with our patients about the diagnosis prior to charting it is necessary and good care.”
Though it is almost certain that radical trans advocates will try to use this ruling to expand trans rights or defeat restrictions on “gender-affirming care,” citing a case about an incarcerated man who physically transitioned years ago and claimed a physical disability to help overturn laws protecting children from irreversible medical treatment is not an easy fit. And Republican attorneys general in states where these laws have passed or are under consideration are on notice to figure out how to shoot down a challenge based on this ruling.