The Supreme Court will soon decide whether to hear a case, Kincaid v. Williams, that turns on whether gender dysphoria is a protected category under the Americans With Disabilities Act, a decision that brings into focus how the clash over transgender rights could arrive at the high court’s docket in the heady days before the 2024 presidential election. 

The ADA, co-sponsored by Senators Ted Kennedy and Harkin and passed in 1990, mandates that a “covered entity” shall not discriminate against “a qualified individual with a disability.” It aimed to expand the protections of the Civil Rights Act of 1964, which encompasses race, religion, sex, national origin, sexual orientation, and gender identity, to reach those with disabilities. 

The ADA defines a “disability” as  a “physical or mental impairment that substantially limits one or more major life activities.” In 2008, Congress mandated that “disability” shall be “construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted.”

In charting its scope, the ADA explains that “homosexuality and bisexuality are not impairments” for the purposes of its protections and neither are “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.” 

Kincaid arrives as a petition for a writ of certiorari from a decision of the United States Court of Appeals for the Fourth Circuit. Its question is whether “gender dysphoria,” defined as a “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth” is identical to the “gender identity disorders” the ADA excludes from protection.

The case is named after a transgender woman, Kesha Williams, who spent six months incarcerated outside of the District of Columbia. She alleges that she was intentionally housed with men after the staff learned that she was transgender, and was repeatedly harassed and otherwise unaccommodated in a multitude of ways. The name in the case is the sheriff of Fairfax County, Stacey Kincaid.  

As the appellate court explains, “at the outset of her incarceration, prison deputies searched” Ms. Williams, assigned her “housing on the women’s side of the prison, and gave her uniforms typically provided to female inmates, including several bras and women’s underwear.” 

Ms. Williams brought suit under 42 U.S.C. § 1983, which provides a civil cause of action, and monetary damages, for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Ms. Williams argues that the jail defaulted on its duties under the ADA. The Fairfax County Sheriff’s Office, though, argues that the difference between gender dysphoria and gender identity disorders is a distinction without a difference.

The district court found for the Sheriff’s office, but a panel of riders, from the of the Fourth Circuit, by a two to one margin, found that gender dysphoria and gender identity disorder were not the same thing. The panel observed that when the ADA was passed the “medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition.” 

Turning from law to psychiatry, the riders observe that “advances in medical understanding led the American Psychiatric Association in 2013 to remove ‘gender identity disorders’ from the most recent” Diagnostic and Statistical Manual of Mental Disorders, or “DSM.” At the same time gender identity disorder was removed, gender dysphoria was added, suggesting that they are not equivalent. 

As the riders put it, the “very fact of revision suggests a meaningful difference, and the contrast between the definitions of the two terms — gender identity disorder and gender dysphoria — confirms that these revisions are not just semantic.” The difference, as marked by the Fourth Circuit, is that dysphoria refers not to simply being transgender but to the  “distress and other disabling symptoms” that can accompany that identity.

As the Fourth Circuit distills it, the “older DSM pathologized the very existence of transgender people” while the “recent DSM-5’s diagnosis of gender dysphoria takes as a given that being transgender is not a disability affirms that a transgender person’s medical needs are just as deserving of treatment and protection as anyone else’s.” 

One rider, Marvin Quattelbaum, dissented. He is unconvinced that gender dysphoria, in substance if not in name, was unknown to the drafters of the ADA, and believes that it is subsumed in gender identity disorder, and thus excluded from the law’s protections. 

Judge Quattelbaum objected to his colleagues’ reliance on psychiatric trends, arguing that such deference  “give organizations like” the American Psychiatric Association “the power to effectively modify statutes passed by Congress and signed into law by the President. That cannot be right.”

The Fourth Circuit, by an eight to seven vote, passed on an en banc hearing, and now the case is before the justices. Kincaid presents an unusual profile for a case searching for cert because it is not the product of a so-called circuit split, when two appellate bodies come out on opposing sides of a question, and need the high court to swoop in and resolve the conflict. 

Sheriff Kincaid, who is appealing the case to the high court on behalf of Fairfax County, tells the justices that a “split amongst the circuit courts is inevitable.” If she can convince four justices of that, this clash over the scope of one of America’s signature laws will reach the Supreme Court.