KESHA T. WILLIAMS, Plaintiff – Appellant, v. STACEY A. KINCAID, in her official capacity; XIN WANG, NP, in her individual and official capacities; DEPUTY GARCIA, in his individual and official capacities, Defendants – Appellees.
No. 21-2030
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
August 16, 2022
PUBLISHED. Argued: March 11, 2022. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:20-cv-01397-CMH-TCB). Before MOTZ, HARRIS, and QUATTLEBAUM, Circuit Judges.
ARGUED: Joshua Harry Erlich, THE ERLICH LAW OFFICE, PLLC, Arlington, Virginia, for Appellant. Philip Corliss Krone, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellees. ON BRIEF: Davia Craumer, Katherine L. Herrmann, THE ERLICH LAW OFFICE, PLLC, Arlington, Virginia, for Appellant. Alexander Francuzenko, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellees. Shannon Minter, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California; Jennifer Levi, GLBTQ LEGAL ADVOCATES & DEFENDERS, Boston, Massachusetts; Kevin M. Barry, QUINNPIAC UNIVERSITY SCHOOL OF LAW LEGAL CLINIC, Hamden, Connecticut, for Amici GLBTQ Legal Advocates & Defenders, National Center for Lesbian Rights, Lambda Legal, Transgender Legal Defense & Education Fund, Black and Pink Massachusetts, Transcending Barriers (ATL), National LGBTQ Task Force, The American Civil Liberties Union, The National Center for Transgender Equality, and Trans People of Color Coalition. John Cimino, Rebecca S. Herbig, Steven M. Traubert, DISABILITY LAW CENTER OF VIRGINIA, Richmond, Virginia, for Amici The disAbility Law Center of Virginia and Disability Rights Vermont.
Kesha Williams, a transgender woman with gender dysphoria, spent six months incarcerated in the Fairfax County Adult Detention Center. Though prison deputies initially assigned her to women‘s housing, they quickly moved her to men‘s housing when they learned that she was transgender. There, she experienced delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional misgendering and harassment by prison deputies. Following her release from the detention center, Williams filed this
I.
Because this is an appeal from a district court‘s grant of a motion to dismiss, we must “assume the truth of the facts as alleged in [the] complaint.” Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 249 (2009). We thus recount those facts.
Williams is a transgender woman whose gender identity (female) differs from the gender (male) she was assigned at birth. Prior to her incarceration, Williams changed her legal name and lived her life as a woman. Her home state of Maryland has recognized her gender as female and issued her a driver‘s license with that designation. Williams suffers from gender dysphoria, a “discomfort or distress that is caused by a discrepancy between
At the outset of her incarceration, prison deputies searched 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. Later that same day, during her preliminary medical evaluation, Williams told the prison nurse, Xin Wang, that she is transgender, suffers from gender dysphoria, and for fifteen years had received hormone medical treatment for her gender dysphoria. Williams had brought this hormone medication with her to the prison and asked Nurse Wang to retrieve it for her. Nurse Wang did not return Williams’ medicine to her; instead she instructed Williams to fill out a medical release form and indicated that prison healthcare staff would follow up with her soon.
In response to Nurse Wang‘s further questioning, Williams explained she had not undergone transfeminine bottom surgery. Because Williams retained the genitalia with which she was born, Nurse Wang labelled Williams as “male” and changed her prison records, including her housing assignment, to reflect that label. Pursuant to the prison‘s policy, which provides that “[m]ale inmates shall be classified as such if they have male genitals” and “[f]emale inmates shall be classified as such if they have female genitals,”
As instructed by Nurse Wang, Williams filled out the medical release form later that same day. But two weeks went by without Williams receiving her prescribed hormone medication for gender dysphoria. As a result, Williams began experiencing significant mental and emotional distress. She requested a visit from a nurse, who directed her to fill out another medical release form. Williams did so. Nurse Wang received Williams’ medical records on December 4, 2018, but did not approve the medication or re-initiate hormone treatment until on or about December 10. Subsequently, Nurse Wang failed to provide Williams with her approved and scheduled hormone treatment on two separate occasions.
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.
In January 2019, during a “shakedown” search of Williams’ housing unit, Williams again requested that a female deputy conduct the body search. Despite the presence and
Williams’ incarceration ended in May 2019. Thereafter, she brought this
Defendants moved to dismiss the Amended Complaint. Sheriff Kincaid contended that the ADA and Rehabilitation Act afforded Williams no basis for relief because “gender dysphoria is not a ‘disability’ under the ADA.” Kincaid Mem. in Support of Mot. to Dismiss at 8. Rather, according to Sheriff Kincaid, “it is an identity disorder not resulting from physical impairments.” Id. The district court adopted this argument and dismissed the ADA and Rehabilitation Act claims against Sheriff Kincaid. The court also dismissed the claims against Nurse Wang and Deputy Garcia, holding that most were barred by the statute of limitations and that the acts alleged to have taken place within the limitations
Williams timely noted this appeal.
II.
We first address Williams’ claims against Sheriff Kincaid under the ADA and the Rehabilitation Act,1 reviewing de novo the district court‘s dismissal of those claims under Rule 12(b)(6). Gerner v. County of Chesterfield, 674 F.3d 264, 266 (4th Cir. 2012). In reviewing a 12(b)(6) motion, we must “draw all reasonable inferences in favor of the plaintiff.” King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). To survive such a motion, a complaint must contain facts that, if true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The recitation of facts need not be particularly detailed, and the chance of success need not be particularly high.” Owens v. Baltimore City State‘s Att‘ys Office, 767 F.3d 379, 403 (4th Cir. 2014).
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.
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.”
In addressing this question, we of course must follow Congress’ direction. After a series of Supreme Court decisions narrowing the ADA, Congress responded in 2008 by instructing courts in an amendment to the ADA that the definition of “disability” “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the [ADA‘s] terms.”
Williams poses two challenges to the district court‘s holding that she suffers from a “gender identity disorder[] not resulting from physical impairments.” First, she contends that gender dysphoria categorically is not a “gender identity disorder[].” Second, Williams argues that even if her gender dysphoria is a “gender identity disorder[],” it results from a physical basis that places it outside the scope of the exclusion from ADA protection. Appellant Br. at 32. We consider each of these arguments in turn.
A.
We begin with Williams’ first contention: that gender dysphoria categorically is not a “gender identity disorder[],” and so the exclusion from ADA protection of “gender identity disorders” does not affect ADA coverage for gender dysphoria. The text of the ADA does not define the term “gender identity disorders” and does not mention gender dysphoria at all. Thus, although the ADA specifically lists a number of exclusions from the definition of “disability,” that list does not include gender dysphoria. To determine whether “gender identity disorders” includes gender dysphoria, we must look to the meaning of the ADA‘s “terms at the time of its enactment.” Bostock v. Clayton County, 140 S. Ct. 1731, 1738 (2020). That examination reveals that in 1990, “the time of the statute‘s adoption,” “gender identity disorders” did not include gender dysphoria. Id.
In fact, in 1990, the medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition. But it did
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-5.2 At the same time as the APA removed “gender identity
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.”3 DSM-5 at 451–53 (emphasis added); see Br. of Amici Curae, The disAbility Law Center, et al. in Supp. of Appellant at 9. And the DSM-5 explains that the discomfort or distress caused by gender dysphoria may result in intense anxiety, depression, suicidal ideation, and even suicide. DSM-5 at 454–55. In short, “being trans alone cannot sustain a diagnosis of gender dysphoria under the DSM-[5], as it could for a diagnosis of gender identity disorder under [earlier versions of the DSM].” Ali Szemanski, Note, Why Trans Rights Are Disability Rights: The Promises and Perils of Seeking Gender Dysphoria Coverage Under the Americans with Disabilities Act, 43 Harv. J. L. & Gender 137, 147 (2020). For
Reflecting this shift in medical understanding, we and other courts have thus explained that a diagnosis of gender dysphoria, unlike that of “gender identity disorder[],” concerns itself primarily with distress and other disabling symptoms, rather than simply being transgender. In Grimm, we further explained that “left untreated, gender dysphoria can cause, among other things, depression, substance use, self-mutilation, other self-harm, and suicide.” 972 F.3d at 595. Similarly, the Ninth Circuit has pointed out that “[f]ailure to follow an appropriate treatment plan [for gender dysphoria] can expose transgender individuals to a serious risk of psychological and physical harm.” Edmo v. Corizon, Inc., 935 F.3d 757, 771 (9th Cir. 2019).
Not only are “gender identity disorder” and gender dysphoria characterized by different symptoms; they also affect different populations. As Williams acknowledges in her complaint, “gender dysphoria” is “a disability suffered by many (but certainly not all) transgender people.” Am. Compl. ¶ 2; see also Kevin M. Barry et al., A Bare Desire to Harm: Transgender People and the Equal Protection Clause, 57 B.C. L. Rev. 507, 516 (2016) (“For many transgender people, the incongruence between gender identity and assigned sex does not interfere with their lives; they are completely comfortable living just the way they are.“); DSM-5 at 451 (“[N]ot all individuals will experience distress as a result of such [gender] incongruence.“). But “[f]or a subset of transgender people . . . the
In sum, the APA‘s removal of the “gender identity disorder” diagnosis and the addition of the “gender dysphoria” diagnosis to the DSM-5 reflected a significant shift in medical understanding. The obsolete diagnosis focused solely on cross-gender identification; the modern one on clinically significant distress. The DSM-5 itself emphasizes this distinction, explaining that the gender dysphoria diagnosis “focuses on dysphoria as the clinical problem, not identity per se.” DSM-5 at 451. Put simply, while the older DSM pathologized the very existence of transgender people, the recent DSM-5‘s diagnosis of gender dysphoria takes as a given that being transgender is not a disability and affirms that a transgender person‘s medical needs are just as deserving of treatment and protection as anyone else‘s.
And even putting aside our legal conclusion, at this early stage in the litigation, a dismissal of Williams’ ADA claims would misunderstand the generosity with which complaints are to be reviewed. See Bd. of Trs. v. Four-C-Aire, Inc., 929 F.3d 135, 152 (4th Cir. 2019) (“When considering the sufficiency of a complaint‘s allegations under a Rule 12(b)(6) motion, courts must construe the complaint ‘liberally so as to do substantial justice.’” (quoting Hall v. DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017))). The difference between “gender identity disorders” and gender dysphoria, as revealed by the DSM and the WPATH Standards, would be more than enough support to “nudge [Williams‘] claims” that gender dysphoria falls entirely outside of
Moreover, given Congress’ express instruction that courts construe the ADA in favor of maximum protection for those with disabilities, we could not adopt an unnecessarily restrictive reading of the ADA. To so hold would be for a court to take it upon itself to rewrite the statute in two impermissible ways: by penciling a new condition into the list of exclusions, and by erasing Congress’ command to construe the ADA as broadly as the text permits. We cannot add to the ADA‘s list of exclusions when Congress has not chosen to do so itself.
B.
Williams also contends that even if gender dysphoria and “gender identity disorder[]” were not categorically distinct, as we have held, her gender dysphoria nevertheless falls within the ADA‘s safe harbor for “gender identity disorders . . . resulting from physical impairments.” Thus, Williams maintains that we must reverse the district
In response, Sheriff Kincaid does not argue that gender dysphoria never results from a physical impairment; she concedes that it sometimes may. See Br. of Appellees at 15 (“[T]he question is not whether gender dysphoria could possibly be the result of the physical impairment . . . .” (emphasis added)); id. at 19 (noting that the DSM “indicates that gender dysphoria can result from a disorder of sex development, which would equate to resulting from physical impairment“). Rather, Sheriff Kincaid contends that Williams failed to explicitly plead that her gender dysphoria was the result of a physical impairment. Appellee Br. at 15. The district court (apparently assuming that gender dysphoria is a “gender identity disorder“) based its dismissal of the ADA claim on this rationale alone.
In determining the correctness of this legal conclusion, we are once again guided by Congress’ mandate that we must construe the definition of “disability” as broadly as the text of the ADA permits.
In light of the broad scope of the ADA and the implementing regulations, we conclude that Williams has alleged sufficient facts to render plausible the inference that
These allegations suffice to raise “the reasonable inference” that Williams’ gender dysphoria results from a physical impairment. Iqbal, 556 U.S. at 678. In particular, the need for hormone therapy may well indicate that her gender dysphoria has some physical basis. See Grimm, 972 F.3d at 596 (describing “hormone therapy” as a “physical transition treatment[]“). That Williams did not “specifically allege that her gender dysphoria is rooted in some physical component” by using those particular words does not render implausible the inference that her gender dysphoria has a physical basis. Doe v. Pa. Dep‘t of Corr., No. 1:20-cv-00023, 2021 WL 1583556, at *11–12 (W.D. Pa. Feb. 19, 2021) (relying on plaintiff‘s argument “that the DSM-[5] provides evidence of a physical source”
Indeed, in addition to the allegations regarding her hormone treatment, Williams points to medical and scientific research identifying possible physical bases of gender dysphoria.7 The Department of Justice has agreed that this emerging research renders the inference that gender dysphoria has a physical basis sufficiently plausible to survive a motion to dismiss. See, e.g., Statement of Interest of the United States of America at 1–2, Blatt v. Cabela‘s Retail, Inc., No. 5:14-cv-4822 (E.D. Pa. Nov. 16, 2015) (“In light of the evolving scientific evidence suggesting that gender dysphoria may have a physical basis, along with the remedial nature of the ADA and the relevant statutory and regulatory provisions directing that the term ‘disability’ and ‘physical impairment’ be read broadly,
Sheriff Kincaid‘s contrary argument boils down to asserting that Williams should have inserted the words “from a physical basis” into her complaint. In fact, at oral argument, Sheriff Kincaid‘s counsel conceded that if Williams “pled that [gender dysphoria] was the result of a physical impairment, then . . . [the ADA claim] can get beyond the pleading stage, and then it could still be an issue for proof.” Oral Argument at 32:01–32:20. But a plaintiff need not plead any “specific words” to defeat a motion to dismiss. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (internal citation omitted). The Sheriff‘s contention to the contrary would return us to “the hypertechnical, code-pleading regime of a prior era,” eliding Rule 8‘s straightforward focus on the plausibility of a claim. Iqbal, 556 U.S. at 678.
Our approach today “acknowledges that courts typically lack sufficient expertise in physiology, etiology, psychiatry, and other potentially relevant disciplines to determine the cause or causes of gender dysphoria.” Pa. Dep‘t of Corr., 2021 WL 1583556, at *9. Especially at this early stage, to dismiss a case based on such “unknowns” would be wholly “premature and speculative.” Bd. of Trs., 929 F.3d at 152; see also id. (noting that courts must construe complaints “liberally so as to do substantial justice“). Williams’ complaint, as it stands, permits the plausible inference that her condition “result[ed] from a physical impairment.”
C.
If there were any doubt that
As Williams points out, many transgender people experience gender dysphoria, Am. Compl. ¶ 9, and both gender dysphoria and “gender identity disorder” (as it existed in 1990) are very “closely connected to transgender identity.” Br. of Amici GLBTQ Legal Advocs. & Defs. et al. in Supp. of Appellee 21; see also Grimm, 972 F.3d at 596. Given that correlation, we have little trouble concluding that 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. Cf. Christian Legal Soc. Chapter of Univ. of Cal., Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 689 (2010) (declining to distinguish between conduct and status when the two are closely correlated).
In part because of the long history of discrimination against transgender people, we have held that intermediate scrutiny applies to laws that discriminate against them. See Grimm, 972 F.3d at 610 (“[T]ransgender people constitute at least a quasi-suspect class.“);
One need not look too closely to find evidence of discriminatory animus toward transgender people in the enactment of
The legislative history of the ADA reflects the moral judgment implicit in that list. For example, Senator Jesse Helms, a leading force behind the exclusion of gender identity disorders from the ADA, stated: “If this were a bill involving people in a wheelchair or those who have been injured in the war, that is one thing. But how in the world did you get to the place that you did not even [ex]clude transvestites?” Barry, Disabilityqueer, at 14 (quoting Helms). Another legislator advocating this exclusion, Senator William Armstrong, “could not imagine the sponsors would want to provide a protected legal status to somebody who has such disorders, particularly those [that] might have a moral content
Moreover, this is not the first time that courts have confronted a law that “withdraws from [one group], but no others, specific legal protection from the injuries caused by discrimination.” Romer v. Evans, 517 U.S. 620, 627 (1996). In fact, by carving a safe harbor for discrimination out of broad antidiscrimination protections,
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
Because “a construction of the statute . . . by which [this constitutional] question may be avoided” is readily available, Zadvydas, 533 U.S. at 689, we reject a reading of
For all of these reasons, we reverse the district court‘s dismissal of Williams’ ADA claims.
We now turn to Williams’ remaining claims. Before reaching the merits of those claims, we must address a threshold statute of limitations question that pertains only to some of Williams’ claims.9 Williams filed her Original Complaint on November 16, 2020, within the two-year statute of limitations that the parties agree applies to all her claims. See
Williams contends that the Amended Complaint “relates back” to the Original Complaint, such that the filing date for the Original Complaint applies to all her claims. “The relation back of an amendment is governed by Rule 15(c) and presents a question of law which this Court reviews de novo.” Robinson v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010). Under
1.
In rejecting Williams’ relation-back argument, the district court relied only on
The district court erred when it concluded that the time period set out in
Even if that were not so, the Supreme Court has unequivocally “reject[ed the] suggestion that
In any event, Nurse Wang and Deputy Garcia waived this argument. They have never responded to Williams’ notice arguments, either before the district court or before us. They therefore concede that they had proper notice. See Mironescu v. Costner, 480 F.3d 664, 677 n.15 (4th Cir. 2007) (noting that appellees may waive issues by not briefing them).
2.
Instead of asserting that they lacked notice, Wang and Garcia‘s only argument on appeal is that naming a “Doe” defendant does not constitute a “mistake” under
Even if we now wished to reject the focus on notice set forth in Goodman (and we see no reason why we could or should do so), Wang and Garcia never made this argument before the district court. To the contrary, in their motions to dismiss, they conceded that the “Relation Back doctrine” does “appl[y] to re-naming John Does in amended complaints when the John Doe defendant receives notice before the expiration of the service provided under
Wang and Garcia may not backtrack now. We have long held that “[a]bsent exceptional circumstances . . . we do not consider issues raised for the first time on appeal.” Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009) (quoting Volvo Const. Equip. N. Am. v. CLM Equip. Co., 386 F.3d 581, 603 (4th Cir. 2004)). Wang and Garcia have not contended, either in their brief or at oral argument, that such exceptional circumstances exist here. And nothing in the record hints at a reason sufficient to clear this “high[] bar.” Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir. 2020). Thus, we decline to consider their brand-new argument that naming a Doe defendant does not constitute a “mistake.”
Accordingly, we reverse the district court‘s determination that the statute of limitations bars certain claims against Nurse Wang and Deputy Garcia and remand those claims for consideration on the merits in the first instance.10
B.
Having considered the statute of limitations question, we turn to the claims that the district court disposed of fully on the merits — Williams’ assertions of gross negligence against Sheriff Kincaid and Deputy Garcia.
In Virginia, “[g]ross negligence is “a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.“” Commonwealth v. Giddens, 816 S.E.2d 290, 294 (Va. 2018)
The district court dismissed the gross negligence claims against Sheriff Kincaid and Deputy Garcia for failure to state a claim because it found that the complaint showed that both exercised “some degree of care.” For the most part, in doing so, the court erred.
1.
We begin with Williams’ gross negligence claim against Sheriff Kincaid. That claim is based on two different sets of facts.
The first centers on Sheriff Kincaid‘s supervision of her deputies. Williams contends that Sheriff Kincaid acted with gross negligence because under the Sherriff‘s supervision, her deputies misgendered and harassed Williams and prevented Williams from participating in the prison‘s Workforce Program. But Williams alleges only that Sheriff Kincaid “failed to appropriately supervise, review, and ensure the provision of
The second set of facts rests on the Sheriff‘s maintenance of a policy “wherein transgender inmates are housed based on their genitalia,” which caused Williams to be housed with men and face a risk of real harm. Analysis of this claim requires a close look at the relevant prison policy provisions included in the complaint. Williams acknowledges that the prison policy announces that “[a]ll transgender and gender non-conforming inmates shall be classified and assigned housing based on their safety/security needs, housing availability, and genitalia (to include potential vulnerability, if assigned to general population).” Appellant‘s Br. at 49. This provision appears to mandate a multifactor balancing test, allowing the prison to determine on a case-by-case basis where to house transgender inmates.
If this were the sole provision of the prison policy relating to housing transgender inmates, we could not hold that the policy evinces gross negligence. But as Williams further alleges, Sheriff Kincaid‘s policy also contains two other provisions that appear to limit or override this one. Those provisions state that “male inmates shall be classified as such if they have male genitals” and “female inmates shall be classified as such if they have female genitals.” Am. Compl. ¶ 38.
In considering whether Sheriff Kincaid had acted with gross negligence, the district court concluded that she “enacted standards relating to gender classification directed at promoting safety of inmates and prison staff.” The district court can only have been referring to the provision of the policy that addresses the “safety/security needs” of transgender inmates. But that provision cannot be read without reference to the other provisions quoted above, which seem to override it. And even if there is another way to reconcile these competing provisions that does not require deputies to house inmates based solely on their genitalia, at this early stage, we must construe the complaint — and thus the prison policy — in Williams’ favor. King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016).
Reading these provisions together in the way Williams reasonably suggests, the prison policy contravenes federal law. Specifically, federal regulations enacted under the Prison Rape Elimination Act require prisons, when “deciding whether to assign a
Moreover, far from exhibiting a degree of care, a policy that houses transgender inmates based solely on their genitalia puts transgender inmates at further risk of harm. The safety risks of housing transgender women in men‘s prisons are by now well recognized. See, e.g., Powell v. Schriver, 175 F.3d 107, 115 (2d Cir. 1999); Tay v. Dennison, 457 F. Supp. 3d 657, 682 (S.D. Ill. 2020); Doe v. District of Columbia, 215 F. Supp. 3d 62, 76 (D.D.C. 2016); Valerie Jenness et al., Violence in California Correctional Facilities: An Empirical Examination of Sexual Assault 2, U.C. Irvine Ctr. For Ev.-Based Corrections (2007), available at https://cpb-us-e2.wpmucdn.com/sites.uci.edu/dist/0/1149/files/2013/06/BulletinVol2Issue2.pdf (estimating that fifty-nine percent of transgender inmates in men‘s prisons are sexually assaulted, compared to about four percent of the general prison population). Under the prison‘s policy, when viewed in the light most favorable to Williams, a transgender woman who has not undergone transfeminine bottom surgery will invariably be housed with men. And because other inmates will likely view such an inmate‘s genitalia as not “matching” her female gender identity, the inmate‘s genitalia will make it more obvious to the other inmates that she is transgender and thereby increase the risk that she will suffer violence.
2.
Finally, we consider the gross negligence claim against Deputy Garcia. The district court dismissed this claim as barred by the statute of limitations. But it nevertheless went
Williams alleges Deputy Garcia treated her with gross negligence when he searched her, “purposefully misgender[ed] her,” and bruised her breast. Am. Compl. ¶ 145. Deputy Garcia claims, and the district court found, that he followed prison policy and therefore exercised “some degree of care” towards Williams. But the only provision of the prison‘s policy on which Garcia relies states that ”if there is uncertainty by a deputy as to a classified inmate‘s gender: . . . If the inmate is housed with the male population, the inmate shall be searched by male staff only.” (emphasis added).
The difficulty with Deputy Garcia‘s reliance on this provision is that Williams alleges that Deputy Garcia knew her to be a woman, and therefore had no “uncertainty” when he searched her. Williams further alleges that Deputy Garcia caused her physical harm during this search. Thus, the district court was mistaken when, in the face of these allegations, it granted Deputy Garcia‘s motion to dismiss her claims on the ground that “Defendant Garcia‘s search of Plaintiff complied with the Sheriff‘s Office policies relating to gender classification, which are directed at promoting the safety of inmates and prison staff.”
Taking the allegations in the complaint as true, as we must, Deputy 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. See Amisi v. Riverside Reg‘l Jail Auth., 555 F. Supp. 3d 244, 261 (E.D. Va. Aug. 16, 2021) (allowing gross negligence claim to proceed where jail officials conducted “a highly invasive strip search” without “legal
IV.
In sum, we hold that Williams has plausibly alleged that gender dysphoria does not fall within the ADA‘s exclusion for “gender identity disorders not resulting from physical impairments.” In addition, we hold that Williams’ Amended Complaint relates back to her Original Complaint and that she has stated claims of gross negligence against Sheriff Kincaid and Deputy Garcia. For the foregoing reasons, we reverse the dismissal of these claims and remand to the district court for further proceedings consistent with this opinion.
REVERSED AND REMANDED
In 1990, Congress passed the Americans with Disabilities Act (“ADA“).
Williams alleges she suffers from “gender dysphoria.” She defines gender dysphoria as discomfort or distress caused by a discrepancy between one‘s gender identity and the sex assigned at birth. But 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.
In challenging the district court‘s decision, Williams argues that gender dysphoria is not a gender identity disorder at all. Instead, she claims the phrase gender identity disorders applies broadly to all those who identify with a gender different from their gender at birth. In contrast, according to Williams, gender dysphoria refers more narrowly only to those who experience discomfort and distress from such incongruence. In support of this position, Williams relies on recent publications from certain psychiatric organizations. As Williams notes, some organizations have removed the phrase gender identity disorder from their publications altogether and clarified that distress and discomfort from identifying with a different gender from the gender assigned at birth constitutes gender dysphoria, not a gender identity disorder. But even if Williams is correct about such changes in
My view here is not in any way a value judgment on Williams, those with gender dysphoria or the broader transgender community. Likewise, I express no view here on the proper policy decisions concerning gender dysphoria or transgender issues. Those issues are outside my job description. Instead, I offer a legal judgment — nothing more, nothing less. Under basic principles of statutory construction, Williams’ ADA claim should be dismissed.
I also agree with the district court that Williams’ allegations of gross negligence against Sheriff Kincaid fail to plausibly state a claim. That claim is based on the prison‘s policy of classifying prisoners into housing based on their genitalia. But under Virginia law, the applicable state law for this claim, gross negligence requires the complete absence of care. One might question whether a better classification method exists. But the prison‘s policy, and the other policies that flow from it, reflect at least some care. Thus, as a matter of law, Sheriff Kincaid was not grossly negligent.
I.
The majority holds that Williams’ alleged gender dysphoria is a disability covered by the ADA. I disagree and would affirm the district court‘s dismissal of the ADA claim.
According to Williams, the district court erred in two ways. First, Williams argues that gender dysphoria is not a gender identity disorder and, as a result, is not excluded from coverage under
A.
1.
To evaluate Williams’ first argument, I begin with the text of the ADA. Under
(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
The ADA does not define “gender identity disorders.” Nor has that phrase been interpreted by the Supreme Court, our court or any of our sister circuits. Thus, in deciding the question we face today, we must look to the meaning of gender identity disorders at the time the statute was written. See Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021); Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018); Sandifer v. United States Steel Corp., 571 U.S. 220, 227 (2014). Congress passed the ADA in 1990. So we ask how gender identity disorders would have been understood at that time.
Williams relies on the American Psychiatric Association‘s (“APA“) Diagnostic and Statistical Manual of Mental Disorders (“DSM“).2 The DSM is a publication for the classification of mental disorders that is periodically revised. In 1990, the DSM was in its third, revised, edition. See Am. Psychiatric Ass‘n, Diagnostic and Statistical Manual of Mental Disorders (3d. ed., rev. 1987) (“DSM-III-R“). The DSM-III-R provided that “[t]he essential feature of [gender identity] disorders . . . is an incongruence between assigned sex (i.e., the sex that is recorded on the birth certificate) and gender identity.” DSM-III-R at 71. But importantly, it added that, even in mild cases of gender identity disorder,
What Williams alleges she experiences as a person with gender dysphoria — “discomfort or distress that is caused by a discrepancy between a person‘s gender identity and that person‘s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristics)” — falls precisely under the DSM-III-R‘s description of, and diagnostic criteria for, gender identity disorders. In other words, when the ADA was signed into law, gender identity disorder was understood to include what Williams alleges to be gender dysphoria. Thus, Williams’ ADA claim must fail.
2.
Williams’ position and the majority‘s conclusion, however, is that gender dysphoria is a new, different diagnosis not encompassed by the phrase gender identity disorders. In advancing this argument, Williams relies on the fifth edition of the DSM. See Am. Psychiatric Ass‘n, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (“DSM-5“). The DSM-5 removed the diagnosis of gender identity disorder and added gender dysphoria. DSM-5 at 451. Specifically, the DSM-5 states that “[g]ender dysphoria is a new diagnostic class in DSM-5 and reflects a change in conceptualization of the disorder‘s defining features by emphasizing the phenomenon of ‘gender incongruence’ rather than cross-gender identification per se, as was the case in [] gender identity disorder.” Id. at 814. Williams alleges this view is also reflected in the seventh edition of the World
Based on these publications, Williams argues gender identity disorder means “gender nonconformity,” whereas gender dysphoria is “a clinical diagnosis that recognizes being transgender is not a medical condition—rather, the medical condition is the distress caused by having a gender identity that differs from one‘s birth sex.” Opening Br. 34.3 In short, Williams argues, and the majority agrees, that the “distress” that comes from being transgender is what differentiates someone with gender dysphoria from someone with a gender identity disorder. Thus, according to Williams and the majority, gender dysphoria is not a gender identity disorder and is thus not excluded from the ADA.
But in attempting to distinguish between gender identity disorder and gender dysphoria, both Williams and the majority ignore the actual language of the DSM-III-R. That publication, which was in place in 1990, provides that, even in mild cases, gender
In reaching this conclusion, I accept as true Williams’ allegation that she suffers from gender dysphoria. And I accept as true Williams’ allegation that gender dysphoria involves discomfort or distress caused by a discrepancy between one‘s gender identity and the sex assigned at birth. But accepting those allegations as true does not require me to turn a blind eye to the plain language of the authorities on which Williams relies. Nor does it permit Williams, like Humpty Dumpty, to “use a word” and declare “‘it means just what I choose it to mean.‘” Lewis Carroll, Through the Looking-Glass, And What Alice Found There 124 (1872). After all, we are not in Wonderland.
In fact, the DSM-III-R was no outlier on this issue. From 1990 to today, gender identity disorder has been understood to include distress and discomfort from identifying as a gender different from the gender assigned at birth. See Am. Psychiatric Ass‘n, Diagnostic and Statistical Manual of Mental Disorders 532–33 (4th ed. 1994) (requiring, for a gender identity disorder diagnosis, “evidence of a strong and persistent cross-gender identification, which is the desire to be, or the insistence that one is, of the other sex,” and “evidence of persistent discomfort about one‘s assigned sex or a sense of inappropriateness in the gender role of that sex“); Gender Identity Disorder, McGraw-Hill Concise Dictionary of Modern Medicine (2002) (describing gender identity disorder as “[a] clinical
In sum, the foundation of Williams’ position—that in 1990, gender identity disorder referred to individuals with cross-gender identification generally and not those that experience distress and discomfort from that identification—is belied by the actual language of the DSM-III-R. And it is further undermined by consistent references to gender identity disorder and gender dysphoria in dictionaries and medical publications from 1990 to present. Finally, it is inconsistent with the text of
What is more, there is evidence that the DSM-5‘s change from gender identity disorder to gender dysphoria primarily involved nomenclature. In fact, the APA said as much. In its preview of the upcoming changes to the DSM-5, the APA stated that:
In the upcoming fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), people whose gender at birth is contrary to one they identify with will be diagnosed with gender dysphoria. This diagnosis is a revision of DSM-IV‘s criteria for gender identity disorder and is intended
to better characterize the experiences of affected children, adolescents, and adults.
Gender Dysphoria, Am. Psychiatric Ass‘n (2013), https://www.psychiatry.org/File%20Library/Psychiatrists/Practice/DSM/APA_DSM-5-Gender-Dysphoria.pdf. The fact that the DSM-5 diagnoses “people whose gender at birth is contrary to one they identify with” as having gender dysphoria is telling. Recall that Williams describes gender identity disorder as “gender nonconformity” generally, as opposed to the stress and discomfort that come from gender identification. See Opening Br. 34.
But the APA not only previewed the upcoming change; it gave the reasons for it. The APA stated that “[i]t replace[d] the diagnostic name ‘gender identity disorder’ with ‘gender dysphoria‘” with the “aim[] to avoid stigma” from characterizing the condition as a disorder. Gender Dysphoria, Am. Psychiatric Ass‘n, supra. It added “[w]hile diagnostic terms facilitate clinical care and access to insurance coverage that supports mental health, these terms can also have a stigmatizing effect.” Id.
Reducing stigmas and preserving insurance coverage may be good reasons to change the name of the diagnosis from gender identity disorder to gender dysphoria. And there may be other reasons for the change. But the meaning of gender identity disorders was fixed at the time the ADA was enacted. Evolution as to the meanings of words and phrases, even if that occurred here, does not modify the statute‘s terms. The Constitution places the responsibility to amend or not amend statutes on the legislature—not on us and certainly not on the APA or the WPATH. See Fedorenko v. United States, 449 U.S. 490,
This principle represents the line of demarcation between my reasoning and that of my good colleagues in the majority. To them, it does matter that gender dysphoria as alleged by Williams fell within gender identity disorders as that phrase was understood in 1990. In fact, they insist reliance on this reality “misses the point.” Maj. Op. 14, n. 5. The important point, according to the majority, is that the diagnosis of gender identity disorders as referenced in
Judicially modifying the meaning of a statute because of society‘s changing attitudes not only invades the province reserved for the legislature; it turns a statute into a moving target. Who gets to decide whether society‘s attitudes have sufficiently changed? How much do they have to change? How do we ever really know what the law means?
3.
The majority relies on the 2008 amendments to the ADA in which Congress specified that the term “disability” “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the [ADA‘s] terms.”
In fact, the 2008 amendments bolster my view. While Congress modified parts of the ADA, it left intact the provision that placed gender identity disorders outside the scope of the ADA. That means the understanding of that phrase from 1990 should continue to guide our analysis.
Williams also argues on appeal that if the exclusion in
The majority does not adopt this view as a substantive constitutional challenge. However, it uses the same reasoning under the doctrine of constitutional avoidance. And in evaluating
But before the constitutional avoidance canon may be employed, a statute first must be ambiguous. See Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018) (“The canon of constitutional avoidance ‘comes into play only when, after the application of ordinary textual analysis, the statute is found susceptible of more than one construction. In the absence of more than one plausible construction, the canon simply has no application.‘” (quoting Clark v. Martinez, 543 U.S. 371, 385 (2005))). Here,
Second, any equal protection analysis requires not only consideration of whether the ADA‘s exclusions are discriminatory but also of the government‘s interests in
5.
In reviewing a dismissal under Rule 12(b)(6) de novo, we must of course accept the allegations of a complaint as true. But that does not require us to accept the mischaracterizations of words or phrases in a statute. No amount of lingual gymnastics can change the fact that Williams’ alleged disability falls comfortably with the meaning of the phrase “gender identity disorders” as used in
B.
Determining that Williams suffers from a gender identity disorder under
But a review of the amended complaint indicates otherwise. The amended complaint does not identify any part of Williams’ body that is impaired or how or why it became impaired. Williams does not even allege a physical impairment generally.
And I disagree with the majority‘s conclusion that the allegations in the amended complaint about hormone therapy are enough. Williams’ allegation that “[a]n individual with gender dysphoria may require feminization or masculinization of the body through hormone therapy and/or surgery to alleviate and effectively treat the condition” does not imply the existence of a pre-existing physical impairment.6 J.A. 14 (emphasis added). At most, it implies hormone therapy and/or surgery may be—not that it always is—helpful to treat the condition. But
The only physical condition Williams alleges the hormone therapy addresses is the distress and discomfort that comes from the fact that Williams was assigned male at birth but identifies as female. So what Williams really seems to be arguing is that for transgender individuals experiencing stress and discomfort about their gender incongruity, the physical impairment is that those individuals were assigned a gender at birth (and have the accompanying physical characteristics) different from the gender with which they identify. But that cannot be an impairment for purposes of
To meet the Rule 8 standard and survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “To contain sufficient factual matter to make a claim plausible, the factual content must ‘allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.‘” ACA Fin. Guar. Corp. v. City of Buena Vista, Va., 917 F.3d 206, 212 (4th Cir. 2019) (citing Iqbal, 556 U.S. at 678). Because Williams’ amended complaint contains insufficient allegations about a physical impairment, Williams’ ADA claim is not plausible on its face.
II.
Last, I consider Williams’ gross negligence claim against Sheriff Kincaid. Williams’ gross negligence allegations stem from the Detention Center‘s policy of classifying inmates based on their genitalia. Sheriff Kincaid is responsible, by law, for operating the prison. That responsibility includes enacting policies to protect the inmates
Virginia law imposes a strict standard for gross negligence. A party who exercises “some degree of care” cannot be liable for gross negligence. Elliot v. Carter, 791 S.E.2d 730, 732 (Va. 2016). Said differently, parties can only be liable for gross negligence in Virginia if they exhibit no care at all.
Even accepting the allegations in the amended complaint as true, Williams has not plausibly pled a claim for gross negligence. Williams alleged that Sheriff Kincaid created, implemented and carried out the prison policies related to the safety of inmates and employees at the prison based on classifying prisoners according to their genitalia. By doing so, Sheriff Kincaid exercised at least some care. Williams may not agree with those policies, and perhaps the policies employed were not optimal. But the allegations in the amended complaint concerning their creation and implementation preclude a claim for gross negligence.
To explain, Williams would have preferred to be housed with females, given female underwear and searched by female guards. Maybe classifying an inmate based on their gender identity is a better policy. But under that system, female prison staff would have to search inmates with male genitalia and female inmates would have to live and shower with inmates with male genitalia. Those realities create a separate set of concerns and safety
The point of this is not to say what is the best approach. The point is to illustrate that, in delineating policies, Sheriff Kincaid faced a difficult situation. There are pros and cons for every possible approach. Sheriff Kincaid tried to address that situation with a classification policy based on genitalia. And that effort, even if arguably imperfect, represents some care and, thus, as a matter of law, forecloses Williams’ gross negligence claim.
Whether Williams or this Court agrees with Sheriff Kincaid‘s policies, the Sheriff exhibited at least some care in implementing the polices and carrying them out. Sheriff Kincaid cannot be said to have exhibited a total lack of care. For that reason, the district court‘s decision should be affirmed.9
For the foregoing reasons, I would affirm the dismissal of Williams’ ADA claim and gross negligence claim as to Sheriff Kincaid.