The Americans with Disabilities Act was enacted in 1990. This landmark statute provided federal protection for a wide range of disabilities. But the statute created an express exception for "gender identity disorders not resulting from physical impairments." In Williams v. Kincaid, the Fourth Circuit found that "gender dysphoria" was not equivalent to what the ADA referred to as a "gender identity disorder." Thus, the panel ruled, gender dysphoria was a disability protected by the ABA. The panel favored this reading "to avoid a serious constitutional question." Specifically, the panel concluded that excluding protections for "gender dysphoria would discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment." And, under circuit precedent (Grimm v. Gloucester County School Board), the classification did not survive intermediate scrutiny.
But the panel went further. It found that the enactment of this statute was tainted "evidence of discriminatory animus toward transgender people." The panel then quoted legislative history from members of Congress that analogized "gender identity disorders" with immoral and criminal behavior. Many of these statements echoed the claim in the Defense of Marriage Act that the law evinced a "moral disapproval" of same-sex marriage. The panel cited Romer, a classic Kennedy opinion that relied on the "discriminatory animus" standard.
In light of the "basic promise of equality … that animates the ADA," we see no legitimate reason why Congress would intend to exclude from the ADA's protections transgender people who suffer from gender dysphoria. Nat'l Fed. of the Blind, 813 F.3d at 510. The only reason we can glean from the text and legislative record is "a bare … desire to harm a politically unpopular group[, which] cannot constitute a legitimate governmental interest." Romer.
