There is a carve-out to the Americans with Disabilities (ADA) that we rarely reference in our work with clients and that most employers have never used. It contains a list of what is referred to as sexual behaviors, including behaviors that everyone can agree are criminal'like pedophilia and voyeurism. The carve-out refers to such behaviors as "sexual behavior disorders." However, the carve-out also includes other language that some have argued excludes from the definition of a disability certain mental conditions recognized in the medical community that may be experienced by individuals who do not identify with their sex assigned at birth. The Fourth Circuit recently addressed one such condition'gender dysphoria'and held that it could qualify as a disability under the ADA. While the Fourth Circuit only covers a limited area of the country, and the decision did not involve an employment relationship, the decision and the court's reasoning may be instructive to employers in applying the nondiscrimination or failure to accommodate provisions of the ADA.
Background
As noted, the underlying facts of this case have nothing to do with an employment relationship. Rather, the case involved an individual, Kesha Williams, who was sentenced to six months' incarceration. Although Ms. Williams was initially placed in a facility with other female inmates, prison deputies subsequently transferred her to a male facility once prison officials discovered that she is transgender. Ms. Williams alleged that the facility denied her treatment for the gender dysphoria she experienced, and that fellow inmates and prison staff harassed her and ignored her requests that they refer to her correctly as a woman. Further, Ms. Williams' requests for certain accommodations'to shower privately and for...
