1:20-cv-01397-CMH-TCB) KESHA T. WILLIAMS v. Stacey A. Kincaid

FILED: October 7, 2022
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-2030
(1:20-cv-01397-CMH-TCB)
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,
------------------------------
AMERICAN CIVIL LIBERTIES UNION; BLACK AND PINK
MASSACHUSETTS; GLBTQ LEGAL ADVOCATES & DEFENDERS;
LAMBDA LEGAL; NATIONAL CENTER FOR LESBIAN RIGHTS; NATIONAL
CENTER FOR TRANSGENDER EQUALITY; NATIONAL LGBTQ TASK
FORCE; TRANS PEOPLE OF COLOR COALITION; TRANSCENDING
BARRIERS (ATL); TRANSGENDER LEGAL DEFENSE & EDUCATION
FUND; DISABILITY LAW CENTER OF VIRGINIA; DISABILITY RIGHTS
VERMONT
Amici Supporting Appellant.
O R D E R
The court denies appellees’ petition for rehearing en banc.

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A requested poll of the court failed to produce a majority of judges in regular active
service and not disqualified who voted in favor of rehearing en banc. Chief Judge Gregory,
Judge Motz, Judge King, Judge Wynn, Judge Diaz, Judge Thacker, Judge Harris, and Judge
Heytens voted to deny rehearing en banc. Judge Wilkinson, Judge Niemeyer, Judge Agee,
Judge Richardson, Judge Quattlebaum, and Judge Rushing voted to grant rehearing en
banc.
Judge Wynn wrote an opinion concurring in the denial of rehearing en banc.
Judge Quattlebaum wrote an opinion dissenting from the denial of rehearing en
banc, in which Judges Wilkinson, Niemeyer, Agee, Richardson, and Rushing joined.
Entered at the direction of Judge Motz.
For the Court
/s/ Patricia S. Connor, Clerk

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WYNN, Circuit Judge, concurring in the denial of rehearing en banc:
I concur in the majority of the Court’s decision not to rehear this case en banc. But
because six of our colleagues have opted to join an advisory opinion focused on dissenting
from this Court’s decision on the merits,1 I write to briefly highlight the panel majority’s
opposing viewpoint. I urge the reader to review the whole of the panel majority’s
thoughtful, thorough, and correct examination of the issue. See Williams v. Kincaid, 45
F.4th 759, 763 (4th Cir. 2022).
Plaintiff Kesha Williams—a transgender woman with gender dysphoria who spent
six months incarcerated in the Fairfax County Adult Detention Center—filed a § 1983
action against the Sheriff of Fairfax County, a prison deputy, and a prison nurse alleging
violations of the Americans with Disabilities Act (“ADA”), among other claims. She
alleges that Defendants’ actions while she was incarcerated—including placing her in male
inmates’ housing, denying her prescribed hormone medication for a period of time,
subjecting her to harassment, and refusing to provide a female deputy to conduct a body
search—violated the ADA.
The district court dismissed the case, concluding that gender dysphoria is not a
disability as defined by the ADA. Notably, the ADA excludes “transvestism,
transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not
resulting from physical impairments, or other sexual behavior disorders” from the
1 See Doe v. Fairfax Cnty. Sch. Bd., 10 F.4th 406–09 (4th Cir. 2021) (Wynn, J.,
concurring in the denial of rehearing en banc) (discussing the practice of filing advisory
opinions attached to denials of rehearing en banc).

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definition of “disability.” 42 U.S.C. § 12211(b)(1) (emphasis added). At the same time,
however, Congress has mandated that “[t]he definition of disability in [the ADA] shall be
construed in favor of broad coverage of individuals under [the ADA], to the maximum
extent permitted by the terms of [the statute].” Id. § 12102(4)(A) (emphases added).
On appeal, the panel majority reversed and remanded for further proceedings after
concluding that Williams’ complaint raised sufficient allegations “to ‘nudge [her] claims’
that gender dysphoria falls entirely outside of § 12211(b)’s exclusion for ‘gender identity
disorders’ ‘across the line from conceivable to plausible.’” Williams, 45 F.4th at 769
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In reaching this conclusion, the panel majority—in contrast to what the dissent from
denial of rehearing en banc asserts—looked to the meaning of “gender identity disorders”
at the time of the ADA’s enactment in 1990. Id. at 766–67. The majority determined that
“gender identity disorders” in 1990 meant something similar in some ways to “gender
dysphoria”—but the definitions were not the same. Rather, “gender identity disorders” in
1990 were defined by “an incongruence between assigned sex (i.e., the sex that is recorded
on the birth certificate) and gender identity.” Id. at 767 (quoting Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 71 (3d ed., rev. 1987)).
By contrast, “gender dysphoria” does not “focus[] exclusively on a person’s gender
identity” or the “incongruence between their gender identity and their assigned sex.” Id.
Rather, gender dysphoria refers specifically to “the ‘clinically significant distress’ felt by
some of those who experience” that incongruence. Id. (quoting Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 453 (5th ed. 2013)) (second

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emphasis added); see also id. at 769 (explaining that “gender identity disorder” “focused
solely on cross-gender identification,” while “gender dysphoria” focuses “on clinically
significant distress”).
This is not just “linguistic drift.” Dissent from Denial of Rehearing En Banc at 8.
Gender dysphoria is a diagnosable condition whose definition is much narrower than, and
separate from, the definition of “gender identity disorders” in 1990. Put simply, Williams’s
diagnosis was neither named in nor covered by the ADA’s exclusion. “We cannot add to
the ADA’s list of exclusions when Congress has not chosen to do so itself.” Williams, 45
F.4th at 770.
And the majority did not stop there. Recall that the ADA’s exclusion applies only
to “gender identity disorders not resulting from physical impairments.” 42 U.S.C.
§ 12211(b)(1) (emphasis added). The majority held that, even if gender dysphoria is a
“gender identity disorder,” Williams sufficiently alleged that her gender dysphoria resulted
“from physical impairments” and so would not fall within the statutory exclusion.
Williams, 45 F.4th at 770–72. Specifically, Williams alleged that her gender dysphoria
required hormone therapy “to effectively manage and alleviate” it, such that when she went
without treatment, she experienced “emotional, psychological, and physical distress.” Id.
at 770–71 (quoting Am. Compl. ¶¶ 14, 123).
Finally, the majority pointed to constitutional avoidance principles to support its
interpretation of the ADA. Id. at 772–74. Because laws that discriminate against
transgender people are subject to intermediate scrutiny, and because “[o]ne need not look
too closely to find evidence of discriminatory animus toward transgender people in the

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enactment of § 12211(b),” constitutional avoidance principles supported “reject[ing] a
reading of § 12211(b) that would exclude gender dysphoria from the ADA’s protections.”
Id. at 772–73.
In sum, the majority did not “judicially modif[y]” the ADA “[w]ith the stroke of a
pen.” Dissent from Denial of Rehearing En Banc at 7. Instead, it faithfully applied
Congress’s mandate to construe the ADA broadly, and thus its exclusions narrowly. In
interpreting the exclusion from coverage, the majority did not simply rely on changing
definitions or societal norms; it looked to what Congress had meant by the exclusion in
1990 and concluded that Williams’s diagnosis did not fall within that meaning.
My friends in dissent rightly recognize that “[a]ll individuals, including those with
gender dysphoria, deserve to be treated with dignity, respect and kindness.” Id. at 8. Indeed,
that is the purpose for which Congress enacted the ADA. See 42 U.S.C. § 12101. The panel
majority properly upheld that purpose by, as Congress instructed, construing coverage
under the ADA broadly.
I concur in the denial of rehearing this case en banc.

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QUATTLEBAUM, Circuit Judge, with whom Judges WILKINSON, NIEMEYER, AGEE,
RICHARDSON, and RUSHING join, dissenting:
With the stroke of a pen, we have judicially modified the Americans with
Disabilities Act in a way that ignores the law that Congress enacted and the President
signed into law 32 years ago. In 1990, along with the ADA’s new protections, Congress
decided that those protections would not apply to “gender identity disorders.” That phrase,
in 1990, was well understood to include stress and discomfort from identifying with a
gender other than the one assigned at birth. Thus, one would expect a claim for violating
the ADA based on stress and discomfort from identifying with a gender other than the one
assigned at birth to fail without much discussion. Such a decision would not mean the stress
and discomfort are not real. It would instead mean that Congress excluded such claims
from the ADA. And whether we like that policy choice or not, Congress’s policy judgment,
not ours, should be the law.
But not in our Circuit. In our Circuit, and our Circuit alone, the fact that the meaning
of gender identity disorders in 1990 included the stress and discomfort from identifying
with a gender other than the one assigned at birth, and that Congress has not amended or
removed the exclusion, does not matter. More important in our Circuit is the view of the
American Psychiatric Association from twenty years later. By 2012, that private
association believed that the phrase “gender identity disorders” carried a stigma. To
eliminate that stigma, that organization decided to eliminate the phrase gender identity

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disorders and use gender dysphoria instead.* Based on that linguistic drift, this Circuit has
decided that the same stress and discomfort from identifying with a gender other than the
one assigned at birth that was excluded from the ADA as a “gender identity disorder” is no
longer excluded because an organization now calls it “gender dysphoria.” So much for
looking to the meaning of a statute at the time it was written. See, e.g. Niz-Chaves v.
Garland, 141 S.Ct. 1474, 1480 (2021).
Perhaps as remarkable as our decision itself is the fact that we decide today that the
issues presented in it do not even warrant en banc review. We will sit en banc to review
fact-based decisions of district courts and immigration judges, but a novel and far-reaching
interpretation of an influential federal statute that subjects any employer covered by the
ADA to a new disability somehow lacks “exceptional importance” under our Rule 35.
Let me be clear. All individuals, including those with gender dysphoria, deserve to
be treated with dignity, respect and kindness. And there may be a legitimate debate about
the wisdom of the ADA’s exclusion as well as other related policy matters. As I said in my
panel dissent, those issues are, or at least should be, outside of our job descriptions as
judges. My position is about what the ADA says—not what it should say or should not say.
I dissent from our denial of rehearing en banc.
* The American Psychiatric Association 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
(2013), https://www.psychiatry.org/File%20Library/Psychiatrists/Practice/DSM/APA_D
SM-5-Gender-Dysphoria.pdf.

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