Keisha Williams was incarcerated in the Fairfax County Adult Detention Center for six months. Although she is a transgender woman, she was placed in men’s housing, where she experienced harassment, intentional misgendering, and delays in her medical treatment.[i] Williams brought suit under 42 U.S.C. § 1983[ii] alleging that her experience while incarcerated violated the Americans with Disabilities Act (ADA), among other laws. In her complaint, Williams stated that she had gender dysphoria, and she argued that this constituted a disability under § 12102(1)(A) of the ADA.[iii] In Williams v. Kincaid, the United States District Court for the Eastern District of Virginia, Alexandria Division dismissed her case on June 7, 2021.[iv] Williams appealed to the United States Court of Appeals for the Fourth Circuit.[v]
On August 16, 2022, the Fourth Circuit became the first federal appellate court to recognize gender dysphoria as an ADA-protected disability.[vi] The Court found that Williams properly stated grounds for relief under federal law for her discrimination claims, including under the ADA.[vii] The holding indicates that gender dysphoria is an ADA-protected disability. This decision prompts additional questions regarding the full impact of its precedent for the broader transgender community.
A survey conducted by the National Center for Transgender Equality sheds light on the continual problems transgender people in the United States experience when attempting to access healthcare.[viii] Both the survey and legal scholarship have found that denial of insurance coverage of gender-affirming care is a leading factor in the lack of access to such care.[ix] How will the inclusion of gender dysphoria as an ADA-protected disability impact coverage? This blog post explores the new legal possibilities that Williams v. Kincaid presents for increased access to gender-affirming healthcare, particularly health insurance coverage.
The Current State of Gender Dysphoria Protection Under the ADA
When the ADA was enacted in 1990, “gender identity disorder” (GID) was excluded from a protected category, and it continues to be excluded today.[x] The American Psychiatric Association included GID in the third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III) in 1980, but it removed this diagnosis in favor of “gender dysphoria” in 2013.[xi] This change marks the medical community’s recognition that the true problem is the distress caused by the misalignment of a gender identity with that assigned at birth, which can be treated through medical intervention, rather than the misalignment itself.[xii] In other words, transgender people themselves are not the problem.
The Williams v. Kincaid court, tracing this shift in the medical community’s views, distinguished GID from gender dysphoria in its ADA analysis.[xiii] This distinction allowed the Court to interpret the ADA as providing protection for individuals who experience gender dysphoria.[xiv] It found that Congress had intended a broad interpretation of “disability,”[xv] that the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) indicates that the medical community recognizes this disability,[xvi] and that gender dysphoria does not fit within the ADA exclusion for GID because it has a “known physical basis” and thus falls within the exclusion’s safe harbor.[xvii]
Josh Erlich, William’s attorney, was optimistic about what this precedent may bring. He stated that “this holding applies to any individual seeking accommodations for gender dysphoria, including in employment, public accommodations, and in any other context in which the ADA provides disability protections.”[xviii] Although this case may lead to exciting possibilities for federal protections of trans rights, attitudes toward the medicalization of gender dysphoria by deeming it a disability vary across the transgender[xix] and the trans-advocate community.[xx] Some trans individuals and advocates feel that the inclusion of gender dysphoria as a medically-treatable disability is a necessary step to ensure further access and rights for transgender people; others feel that it contributes to the notion that being transgender is a disease and that it feeds into the same medical-industrial complex that continues to oppress transgender individuals.[xxi]
The ADA’s Call for Equal Access to Insurance
Williams v. Kincaid certainly marks a new precedent, but the impact of the case is dependent on the powers of the ADA. The ADA prohibits discrimination based on disability, particularly concerning employment, public services, public accommodations, and telecommunications.[xxii] It forbids covered entities from discriminating against a person with a disability “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”[xxiii] The ADA also prohibits disability-based discrimination regarding “fringe benefits available by virtue of employment, whether or not administered by the covered entity.”[xxiv] “Fringe benefits” include employer benefit plans, such as health insurance.[xxv]
The ADA provides a potential pathway to coverage for gender-affirming healthcare through employer plans; however, the ADA’s non-discrimination requirement is complex and limited. A health insurer may not administer a “discriminatory health insurance plan” under the ADA, but a health plan need not cover all benefits necessary to demonstrate that it is not discriminatory.[xxvi] The ADA allows for “facially neutral limitations” on coverage, meaning that plans may limit or exclude certain benefits if they do not pertain exclusively to a specific disability.[xxvii] For example, a plan does not have to offer vision care, but it cannot say it excludes all coverage related to visual impairment.[xxviii]
In Rethinking the Americans With Disabilities Act’s Insurance Safe Harbor, Valerie Blake argues that the ADA has done very little “in reducing disability-based discrimination by health insurers in the United States.”[xxix] One explanation she offers for the limited impact of the ADA in protecting people as they seek health coverage of their disability-related care is the statute’s insurance “safe harbor.”[xxx] That provision allows private insurers to exclude coverage according to what is financially beneficial to them as long as they do not intend to discriminate against people with disabilities.[xxxi] The safe harbor calls only for “actuarial fairness” in health insurance coverage decisions.[xxxii]
How the ADA May Increase Access to Gender-Affirming Healthcare
The Williams v. Kincaid court’s interpretation of the ADA will likely not be the be-all and end-all of guaranteeing insurance coverage of gender-affirming healthcare. Nonetheless, including gender dysphoria as an ADA-protected disability may create some means to increase access to this healthcare. Neither an employer, nor the insurance company it contracts with, may offer coverage of a procedure for one disability but not another under the ADA.[xxxiii] For example, if the insurance plan covers a bilateral mastectomy for someone with cancer, they must also do so for someone with gender dysphoria.[xxxiv] Thus, coverage exclusions for only people with gender dysphoria may be challenged under the ADA.[xxxv]
Although most discussions about access to gender-affirming healthcare focus on payment and insurance coverage, trans employees require other accommodations to access gender-affirming care safely. For example, gender-affirming medical procedures may require “part-time or modified work schedules,” which are covered under the “reasonable accommodation” provision of the ADA.[xxxvi] A leave of absence to heal from a surgery or a break in the workday to inject hormones would need to be permitted by employers under the ADA.[xxxvii]
Finally, the ADA protects employees and qualified applicants with disabilities from being fired or unfairly barred from employment because their disability might lead to increased health insurance costs for the employer.[xxxviii] Therefore, although the decision to exclude insurance coverage of gender-affirming treatment may be finance-based and impacted by care costs, employment decisions may not be.
The Williams v. Kincaid decision introduces new protections for the transgender community as they interact with employers, particularly if the decision marks a trend in other courts’ interpretations of the ADA. The decision likely creates a new cause of action for trans employees to fight certain insurance exclusions to their care; however, its reach will likely not create a right to universal coverage of gender-affirming healthcare.
Concluding Thoughts
Although some activists[xxxix] and legal scholars[xl] look optimistically at what ADA protection could mean for access to gender-affirming healthcare, the ADA will not be the only route for litigating transphobic insurance exclusions. Existing case law shows the potential of the ADA to make inroads in gender-affirming care coverage, but little binding precedent has shown results.[xli] However, there has been successful litigation fighting gender-affirming care exclusions under other federal laws, including Title VII of the Civil Rights Act of 1964, Section 1557 of the Affordable Care Act (“ACA”), and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.[xlii] Williams v. Kincaid is a win about creating greater legal protections for the transgender community, but the conversation on insurance coverage for gender-affirming care is far from over.
[i] Williams v. Kincaid, 45 F.4th 759, 763 (4th Cir. 2022).
[ii] 41 U.S. Code § 1983 provides a cause of action for citizens against those acting under color of state law. It is a means to assert one’s existing civil rights under the law when violated by a state actor. See 42 U.S.C. § 1983; Univ. Minn. L. Sch., Section 1983 (42 U.S.C. § 1983 – Civil Action for Deprivation of Rights) & Bivens Actions, https://libguides.law.umn.edu/c.php?g=125765&p=2893387 (last visited Jan. 14, 2023).
[iii] The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment . . .” 42 U.S.C. § 12102(1).
[iv] Williams v. Kincaid, No. 1:20-cv-1397, 2021 U.S. Dist. LEXIS 106787, at *7-8 (E.D. V.A. June 7, 2021).
[v] Williams, 45 F.4th at 763.
[vi] Ryan Probasco, Fourth Circuit Holds ADA Protections Cover Gender Dysphoria, 12 Nat’l L. Rev. (Aug. 26, 2022), https://www.natlawreview.com/article/fourth-circuit-holds-ada-protections-cover-gender-dysphoria [hereinafter Probasco).
[vii] Williams, 45 F.4th at 779-780.
[viii] The survey revealed that 55% of transgender respondents were denied insurance coverage of transition-related surgery. See James, S. E., Herman et al., Nat’l Center. for Transgender Equality, Executive Summary of the Report of the 2015 U.S. Transgender Survey 1, 8 (2016).
[ix] Id.; Kevin Barry, Challenging Transition-Related Care Exclusions Through Disability Rights Law, 23 U.D.C. L. Rev. 97, 98 (2020), https://digitalcommons.law.udc.edu/udclr/vol23/iss1/5 [hereinafter Barry].
[x] 42 U.S.C. § 12211(b) (“Under this chapter, the term “disability” shall not include…pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders…”).
[xi] See Brief of Amici Curiae GLBTQ Legal Advocates & Defenders et al. in Support of Plaintiff-Appellant at 8, Williams v. Kincaid, 45 F.4th 759, 8 (2010) (No. 21-2030). The most recent edition of the DSM, DSM-5-TR, continues to include a gender dysphoria diagnosis. See Am. Psychiatric Ass’n, What is Gender Dysphoria?, https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria (last visited Jan. 14, 2023).
[xii] Brief of Amici Curiae, supra note 11, at 10-11; William Byne, et al., Gender Dysphoria in Adults: An Overview and Primer for Psychiatrists, 3.1 Transgender Health 57, 59 (2018).
[xiii] Williams v. Kincaid, 45 F.4th 759, 767-68 (4th Cir. 2022).
[xiv] Probasco, supra note 6; Williams, 45 F.4th at 779-80.
[xv] Williams, 45 F.4th at 766.
[xvi] Id. at 767-68.
[xvii] Id. at 770.
[xviii] Rachel Weiner, 4th Circuit First to Rule Gender Dysphoria a Protected Disability, Wash. Post (Aug. 17, 2022), https://www.washingtonpost.com/dc-md-va/2022/08/17/trans-jail-fourth-circuit/.
[xix] Sociologist Austin H. Johnson conducted 33 qualitative interviews with transgender members of a coastal southeastern community in the United States. Observations and excerpts from these interviews may be found here: Austin H. Johnson, Rejecting, Reframing, And Reintroducing: Trans People’s Strategic Engagement With The Medicalisation Of Gender Dysphoria, 41Socio. Health & Illness 517-532 (2019).
[xx] See, e.g., Jeannie J. Chung, Identity or Condition?: The Theory and Practice of Applying State Disability Laws to Transgender Individuals, 21 Colum. J. Gender & L. 1, 35-36 (2011); Dean Spade, Resisting Medicine, Re/modeling Gender, 18 Berkeley Women’s L. J. 15, 35 (2003); Katelyn Burns, Should Gender Dysphoria be a Federally Protected Disability?, Vice (May 26, 2017), https://www.vice.com/en/article/zmb9gw/should-gender-dysphoria-be-a-federally-protected-disability; Kayley Whalen, (In)Validating Transgender Identities: Progress And Trouble In The Dsm-5, National LGBTQ Task Force, https://www.thetaskforce.org/invalidating-transgender-identities-progress-and-trouble-in-the-dsm-5/, (last visited June 10, 2023).
[xxi] See supra note 20 and accompanying text.
[xxii] U.S. Dept. Just. Civ. Rts. Div., Americans with Disabilities Act of 1990, As Amended, https://www.ada.gov/law-and-regs/ada/ (last visited Jan. 14, 2023).
[xxiii] 42 U.S.C. § 12112.
[xxiv] 29 CFR § 1630.4.
[xxv] U.S. Equal Emp. Opportunity Comm’n,Interim Enforcement Guidance on the Application of the ADA to Disability-Based Distinctions in Employer-Provided Health Insurance (1993).
[xxvi] Barry, supra note 9, at 116.
[xxvii] Gwen Thayer Handelman & Beth Reiter, Health Benefit Plans and the Americans with Disabilities Act, Cornell Univ., ILR Sch., Employ. and Disability Inst. 1, 3 (2010).
[xxviii] Id.
[xxix] Valarie Blake, Rethinking the Americans With Disabilities Act’s Insurance Safe Harbor, 6 Laws 25, 1 (2017).
[xxx] 42 U.S.C. § 12201(c); Blake, supra note 29, at 1-2.
[xxxi] 42 U.S.C. § 12201(c).
[xxxii] Blake, supra note 29, at 10; Mary Crossley, Becoming Visible: The ADA’s Impact on Health Care for Persons with Disabilities, 52 Ala. L. Rev. 51, 78-83 (2000).
[xxxiii] Barry, supra note 9, at 116.
[xxxiv] 29 CFR § 1630.5 (2019).
[xxxv] Id.
[xxxvi] 42 U.S.C. § 12111(9)(B) (2006); 29 C.F.R. Pt. 1630 App. (2012).
[xxxvii] Kevin M. Barry, Disabilityqueer: Federal Disability Rights Protection for Transgender People, 16 Yale Hum. Rts. and Dev. L. J. 1, 38 (2013).
[xxxviii] Gwen Thayer Handelman & Beth Reiter Cornell University, ILR School, Employment and Disability Institute, Health Benefit Plans and the Americans with Disabilities Act, Cornell Univ., ILR Sch., Employ. and Disability Inst. 1, 2 (2010).
[xxxix] “It’s a very important and positive ruling to increase people’s access to gender-affirming care,” said Rodrigo Heng-Lehtinen, executive director of the National Center for Transgender Equality. Denise Lavoie, Gender dysphoria covered by disability law, court rules, PBS (2022), https://www.pbs.org/newshour/politics/gender-dysphoria-covered-by-americans-with-disabilities-act-federal-court-rules (last visited Jan. 19, 2023).
[xl] Jennifer A. Knackert, Necessary Coverage for Authentic Identity: How Bostock Made Title VII the Strongest Protection Against Employer-Sponsored Health Insurance Denial of Gender-Affirming Medical Care, 105 Marq. L. Rev. 179, 193 (2021) [hereinafter Knackert]; Ali Szemanski, When Trans Rights Are Disability Rights: The Promises And Perils Of Seeking Gender Dysphoria Coverage Under The Americans With Disabilities Act, 43 Harv. J.L. & Gender 137, 145 (2020).
[xli] Knackert, supra note 40, at 193.
[xlii] Barry, supra note 9, at 98; American Med. Ass’n & GLMA: Health Professionals Advancing LGBTQ Equality, Issue Brief: Health Insurance Coverage for Gender-Affirming Care of Transgender Patients 1, 2 (2019), https://www.ama-assn.org/system/files/2019-03/transgender-coverage-issue-brief.pdf.
Phoebe Fisher
Phoebe is a rising 3L at GW law who is passionate about health justice. She is a Kahan Fellow.