Stacey A. Kincaid, Sheriff, Fairfax County, Virginia v. Kesha T. Williams

Congress enacted the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq (the “ADA”) in 1990 and amended the act in 2008. Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA, however, excludes from its definition of “disability” “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.” 42 U.S.C. § 12211(b) (emphasis added). Here, a divided panel of the Fourth Circuit held that § 12211(b)(1) did not exclude the diagnosis of gender dysphoria, as described in the American Psychiatric Association’s (the “APA”) publication the Diagnostic and Statistical Manual of Mental Health Disorders, Fifth Edition (the “DSM-5”), from the definition of disability because it was not “gender identity disorder.” The question presented is: 1. Whether the diagnosis of gender dysphoria, found in the DSM-5, is excluded from the ADA’s definition of disability under 42 U.S.C. § 12211(b).