Regardless of whatever else you may think about Kesha Williams, she was committed to being a woman. That’s how she lived for 15 years, how her drivers licensed read and why she took hormones. This was someone who was sincere. So when she was pulled from the women’s side of the Fairfax County Detention Center and put into the male side, what the hell did they expect to happen?
While Williams was housed on the men’s side of the prison, prison deputies repeatedly harassed her regarding her sex and gender identity. Deputies ignored her requests that they refer to her as a woman. Instead, they referred to her as “mister,” “sir,” “he,” or “gentleman.” Williams’ requests for some accommodations — to shower privately and for body searches to be conducted by a female deputy — were denied. One deputy threatened to place her in solitary confinement if she resisted a search by a male deputy. Male inmates also harassed Williams, causing her to fear for her safety throughout her incarceration in male housing.
She was denied her hormones, harassed for being transsexual and put at risk for no reason as there was, apparently, no problem with her being on the women’s side of the prison other than the fact that she had a penis. If it wasn’t a problem, then why make it a problem? Because prisons are run, at best, by grocery clerks with checklists.
Among its protections, the ADA prohibits public entities from discriminating against, or excluding from participation in the benefits of services, programs, and activities, any qualified individual with a disability. 42 U.S.C. § 12132. The ADA defines the term “disability” broadly to include “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Id. § 12102(1)(A). Sheriff Kincaid does not dispute that gender dysphoria falls within that definition.
There was, of course, no reason to dispute whether gender dyphoria is a disability because the Americans with Disabilities Act excluded it regardless.
Instead, the Sheriff relies on the ADA’s exclusions. The statute excludes from the broad definition of “disability” — and thus from the statute’s protections — “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.” Id. § 12211(b) (emphasis added).
Sheriff Kincaid argues, and the district court held, that the exclusion for “gender identity
disorders not resulting from physical impairments” applied to Williams’ gender dysphoria
and barred her ADA claim.
As there was no other avenue for Williams to argue, and the court to hold, that the sheriff, et al., discriminated against her, the focus was on Williams’ whether gender dysphoria was a “gender identity disorder” or some other disability that fell within the ADA scheme. The court, calling it a question of first impression, held it as the latter.
In fact, in 1990 [when the ADA was enacted], the medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition. But it did recognize a class of other disorders that it characterized as “gender identity disorders.” According to the then-current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM), “[t]he essential feature” of a “gender identity disorder” was “an
incongruence between assigned sex (i.e., the sex that is recorded on the birth certificate) and gender identity.” Am. Psych. Ass’n, Diagnostic and Statistical Manual 71 (3d ed., rev.
1987) (DSM-III-R); see Hall v. Florida, 572 U.S. 701, 704 (2014) (describing the DSM as “one of the basic texts used by psychiatrists and other experts”). We have recently recognized precisely this point: that a diagnosis of “gender identity disorder . . . indicat[ed] that the clinical problem was the discordant gender identity.” Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 611 (4th Cir. 2020) (internal citation omitted), cert. denied, 141 S. Ct. 2878 (2021). In other words, in 1990, the gender identity disorder diagnosis marked being transgender as a mental illness.
And so it was squarely within the exclusion included in the ADA? Not so fast.
Crucially, advances in medical understanding led the American Psychiatric Association (APA) in 2013 to remove “gender identity disorders” from the most recent DSM (5th ed. 2013), the DSM-5. At the same time as the APA removed “gender identity disorder” from the DSM-5, the APA added the diagnosis of “gender dysphoria,” which did not exist as a diagnosis in 1990.
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. Indeed, the definition of gender dysphoria differs dramatically from that of the now-rejected diagnosis of “gender identity disorder.” Rather than focusing exclusively on a person’s gender identity, the DSM-5 defines “gender dysphoria” as the “clinically significant distress” felt by some of those who experience “an incongruence between their gender identity and their assigned sex.”
In other words the APA redefined a subset of gender identity disorders by giving it the name gender dysphoria and, the court held, thereby removed it from the statutory exclusion, ironically finding the purely semantic change to be “not just semantic.”
While the court’s holding is not entirely surprising given the nature of the case and the needlessly improper treatment Williams received, a situation which never should have occurred and put a prisoner at mental and physical risk of harm, the net result is that the Fourth Circuit has undermine a core exclusion of the ADA with what may be a well-intended, but logically and linguistically ridiculous argument that will have unintended consequences downstream when it comes to the myriad other applications of the ADA. All for a problem needlessly created by Sheriff Stacey Kincaid and her crew in contravention of her duty to protect the safety of her prison charges. Her screw-up has now produced bad law which will haunt the rest of the Fourth Circuit, perhaps others, because Kesha Williams had a penis.
No comments:
Post a Comment