Virginia Lawyers Weekly VA Lawyers Weekly
Where gender dysphoria falls within the broad definition of “disability” under the Americans with Disabilities Act, or ADA, a transgender woman’s claim that she was discriminated against on the basis of her gender dysphoria may proceed. Although the statute excludes “gender identity disorders not resulting from physical impairments” from the definition of “disability,” at the time of the statute’s adoption, “gender identity disorders” did not include gender dysphoria.
Background
Kesha Williams, a transgender woman with gender dysphoria, spent six months incarcerated in the Fairfax County Adult Detention Center. Prison deputies moved her to men’s housing when they learned that she was transgender, where she allegedly experienced delays in medical treatment, was harassed by other inmates and encountered persistent and intentional misgendering and harassment by prison deputies.
Williams filed this § 1983 action against the Fairfax County sheriff and two prison officials, alleging violations of the ADA, the Rehabilitation Act, the United States Constitution and state common law. The district court dismissed the case.
ADA/Rehabilitation Act
Kincaid does not dispute that gender dysphoria falls within the broad definition of “disability.” The district court nevertheless held that the exclusion for “gender identity disorders not resulting from physical impairments” applied to Williams’ gender dysphoria and barred her ADA claim. This is a question of first impression for the federal appellate courts.
Williams first contends that gender dysphoria categorically is not a “gender identity disorder[].” The text of the ADA does not define the term “gender identity disorders” and does not mention gender dysphoria at all. To determine whether “gender identity disorders” includes gender dysphoria, the court must look to the meaning of the ADA’s “terms at the time of its enactment.” That examination reveals that in 1990, “the time of the statute’s adoption,” “gender identity disorders” did not include gender dysphoria.
Moreover, the difference between “gender identity disorders” and gender dysphoria would be more than enough support to “nudge [Williams’] claims” that gender dysphoria falls entirely outside of § 12211(b)’s exclusion for “gender identity disorders” “across the line from conceivable to plausible.” Finally, given Congress’ express instruction that courts construe the ADA in favor of maximum protection for those with disabilities, the court could not adopt an unnecessarily restrictive reading of the ADA.
Williams also contends that even if gender dysphoria and “gender identity disorder[]” were not categorically distinct, her gender dysphoria nevertheless falls within the ADA’s safe harbor for “gender identity disorders . . . resulting from physical impairments.” In response, Kincaid contends that Williams failed to explicitly plead that her gender dysphoria was the result of a physical impairment. In light of the broad scope of the ADA and the implementing regulations, the court concludes that Williams has alleged sufficient facts to render plausible the inference that her gender dysphoria “result[s] from physical impairments.”
Infirmity
If there were any doubt that § 12211(b) does not foreclose Williams’ ADA claim on a motion to dismiss, the court would interpret that statute to permit that claim to proceed to avoid a serious constitutional question. As Williams points out, many transgender people experience gender dysphoria, and both gender dysphoria and “gender identity disorder” (as it existed in 1990) are very “closely connected to transgender identity.” Given that correlation, a law excluding from ADA protection both “gender identity disorders” and gender dysphoria would discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment.
Statute of limitations
Williams filed her original complaint on Nov. 16, 2020, within the two-year statute of limitations that the parties agree applies to all her claims. But nurse Xin Wang and deputy Garcia were not added as defendants until she filed her amended complaint on February 12, 2021. If February 12 is the relevant filing date for the claims against those two defendants, many of the facts alleged against them fall outside of the two-year limitations period.
The district court explained that because Williams received an extension of time in which to serve the amended complaint, she did not serve Wang and Garcia until after the requisite 90-day period had elapsed. However, this court has clarified that “Rule 15(c)’s notice period incorporates any extension” by a court of that 90-day deadline. The district court granted Williams such an extension, and Williams served Wang and Garcia before the adjusted deadline.
Further Rule 15(c) requires only “notice of the action,” and notice “need not be formal.” Here, Williams provided several alternatives to formal notice. In any event, Wang and Garcia waived this argument.
Wang and Garcia’s only argument on appeal is that naming a “Doe” defendant does not constitute a “mistake” under Rule 15(c)(1)(C)(ii). They invoke the decisions of several other sister circuits in support of this contention. Because they never made this argument in the district court, they cannot raise it for the first time on appeal.
Remaining claims
The district court disposed on the merits Williams’ assertions of gross negligence against Kincaid and Garcia because it found that the complaint showed that both exercised “some degree of care.” For the most part, in doing so, the court erred.
Williams suggests that Kincaid supervised her deputies but that she did so inadequately. Mere inadequacy, however, is insufficient to allege gross negligence under Virginia law. Williams thus has not alleged a claim of gross negligence against Kincaid based on inadequate supervision of her deputies.
However Williams asserts that Kincaid promulgated a policy that forces prison officials to house transgender inmates based solely on their genitalia, even if doing so would obviously put an inmate at risk of serious harm. Maintaining a prison policy that violates federal law and that puts vulnerable inmates at an obvious risk of harm, as Williams has plausibly alleged, could allow a reasonable jury to conclude that Kincaid crossed the line from inadequacy to indifference.
Williams alleges Garcia treated her with gross negligence when he searched her, “purposefully misgender[ed] her” and bruised her breast. Taking these allegations as true, Garcia did not attempt to comply with the prison’s policy on body searches and thus cannot be said to have exhibited any degree of care toward Williams.
Reversed and remanded.
Concurring/dissenting opinion
Quattlebaum, J., concurring in part and dissenting in part:
As alleged by Williams, gender dysphoria is a “gender identity disorder” as that phrase was understood at the time Congress passed the ADA. And since “gender identity disorders not resulting from physical impairments” are excluded from the ADA, the district court appropriately dismissed Williams’ ADA claim. I also agree with the district court that Williams’ allegations of gross negligence against Kincaid fail to plausibly state a claim. Accordingly, I respectfully dissent to those portions of the majority’s opinion.
Williams v. Kincaid, Case No. 21-2030, Aug. 16, 2022. 4th Cir. (Motz), from EDVA at Alexandria (Hilton). Joshua Harry Erlich for Appellant. Philip Corliss Krone for Appellees. VLW 022-2-204. 56 pp.
