PUBLISHED
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`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`
`No. 21-2030
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`KESHA T. WILLIAMS,
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` Plaintiff – Appellant,
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`v.
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`STACEY A. KINCAID, in her official capacity; XIN WANG, NP, in her individual and
`official capacities; DEPUTY GARCIA, in his individual and official capacities,
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` Defendants – Appellees.
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`------------------------------
`
`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.
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`
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`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)
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`
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`Argued: March 11, 2022
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`Before MOTZ, HARRIS, and QUATTLEBAUM, Circuit Judges.
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`Decided: August 16, 2022
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`Reversed and remanded for further proceedings by published opinion. Judge Motz wrote
`the opinion, in which Judge Harris joined. Judge Quattlebaum wrote an opinion concurring
`in part and dissenting in part.
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`
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`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.
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`2
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`DIANA GRIBBON MOTZ, Circuit Judge:
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`Kesha Williams, a transgender woman with gender dysphoria, spent six months
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`incarcerated in the Fairfax County Adult Detention Center. Though prison deputies
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`initially assigned her to women’s housing, they quickly moved her to men’s housing when
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`they learned that she was transgender. There, she experienced delays in medical treatment
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`for her gender dysphoria, harassment by other inmates, and persistent and intentional
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`misgendering and harassment by prison deputies. Following her release from the detention
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`center, Williams filed this § 1983 action against the Sheriff of Fairfax County, a prison
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`deputy, and a prison nurse alleging violations of the Americans with Disabilities Act
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`(“ADA”), the Rehabilitation Act, the United States Constitution, and state common law.
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`The district court dismissed the case, holding that the complaint failed to state grounds for
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`relief with respect to some claims and that the statute of limitations barred others. For the
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`reasons that follow, we disagree and so reverse and remand for further proceedings.
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`I.
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`Because this is an appeal from a district court’s grant of a motion to dismiss, we
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`must “assume the truth of the facts as alleged in [the] complaint.” Fitzgerald v. Barnstable
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`Sch. Comm., 555 U.S. 246, 249 (2009). We thus recount those facts.
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`Williams is a transgender woman whose gender identity (female) differs from the
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`gender (male) she was assigned at birth. Prior to her incarceration, Williams changed her
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`legal name and lived her life as a woman. Her home state of Maryland has recognized her
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`gender as female and issued her a driver’s license with that designation. Williams suffers
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`from gender dysphoria, a “discomfort or distress that is caused by a discrepancy between
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`a person’s gender identity and that person’s sex assigned at birth.” Am. Compl. ¶ 12
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`(quoting the World Professional Association for Transgender Health Standards of Care
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`(7th Version 2012) (“WPATH Standards”)). People suffering from gender dysphoria often
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`benefit from medical treatment, including hormone therapy. Williams had received such
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`medical treatment in the form of a daily pill and biweekly injections for fifteen years prior
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`to her incarceration.
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`At the outset of her incarceration, prison deputies searched Williams, assigned her
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`housing on the women’s side of the prison, and gave her uniforms typically provided to
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`female inmates, including several bras and women’s underwear. Later that same day,
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`during her preliminary medical evaluation, Williams told the prison nurse, Xin Wang, that
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`she is transgender, suffers from gender dysphoria, and for fifteen years had received
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`hormone medical treatment for her gender dysphoria. Williams had brought this hormone
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`medication with her to the prison and asked Nurse Wang to retrieve it for her. Nurse Wang
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`did not return Williams’ medicine to her; instead she instructed Williams to fill out a
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`medical release form and indicated that prison healthcare staff would follow up with her
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`soon.
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`In response to Nurse Wang’s further questioning, Williams explained she had not
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`undergone transfeminine bottom surgery. Because Williams retained the genitalia with
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`which she was born, Nurse Wang labelled Williams as “male” and changed her prison
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`records, including her housing assignment, to reflect that label. Pursuant to the prison’s
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`policy, which provides that “[m]ale inmates shall be classified as such if they have male
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`genitals” and “[f]emale inmates shall be classified as such if they have female genitals,”
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`prison deputies required Williams to live on the men’s side of the facility. Deputies also
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`required her to give up the women’s clothing she had previously received and to wear
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`men’s clothing.
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`As instructed by Nurse Wang, Williams filled out the medical release form later that
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`same day. But two weeks went by without Williams receiving her prescribed hormone
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`medication for gender dysphoria. As a result, Williams began experiencing significant
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`mental and emotional distress. She requested a visit from a nurse, who directed her to fill
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`out another medical release form. Williams did so. Nurse Wang received Williams’
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`medical records on December 4, 2018, but did not approve the medication or re-initiate
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`hormone treatment until on or about December 10. Subsequently, Nurse Wang failed to
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`provide Williams with her approved and scheduled hormone treatment on two separate
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`occasions.
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`While Williams was housed on the men’s side of the prison, prison deputies
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`repeatedly harassed her regarding her sex and gender identity. Deputies ignored her
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`requests that they refer to her as a woman. Instead, they referred to her as “mister,” “sir,”
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`“he,” or “gentleman.” Williams’ requests for some accommodations — to shower
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`privately and for body searches to be conducted by a female deputy — were denied. One
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`deputy threatened to place her in solitary confinement if she resisted a search by a male
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`deputy. Male inmates also harassed Williams, causing her to fear for her safety throughout
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`her incarceration in male housing.
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`In January 2019, during a “shakedown” search of Williams’ housing unit, Williams
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`again requested that a female deputy conduct the body search. Despite the presence and
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`availability of a female deputy, deputies ignored her request. Instead, a male deputy,
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`Deputy Garcia, who knew Williams to be a woman but referred to her as a man, told her:
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`“Sir, you are a male and I need to search you.” He then subjected her to a “highly
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`aggressive” search that resulted in bruising to her breast and caused her “pain for several
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`days.” Afterward, he “mocked Ms. Williams and made light of his actions in searching
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`her person.”
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`Williams’ incarceration ended in May 2019. Thereafter, she brought this § 1983
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`action, asserting violations of the ADA, 42 U.S.C. §§ 12101 et seq., the Rehabilitation Act,
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`29 U.S.C. §§ 701 et seq., the U.S. Constitution, and state law. Williams filed her original
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`complaint on November 16, 2020. That complaint named as defendants Stacey A. Kincaid,
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`Sheriff of Fairfax County; nine “Custody Does”; and fifteen “Health Care Does.” After
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`limited discovery into the identities of prison employees, she filed an amended complaint
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`two months later against only Sheriff Kincaid, Nurse Wang, and Deputy Garcia
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`(“Defendants”).
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`Defendants moved to dismiss the Amended Complaint. Sheriff Kincaid contended
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`that the ADA and Rehabilitation Act afforded Williams no basis for relief because “gender
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`dysphoria is not a ‘disability’ under the ADA.” Kincaid Mem. in Support of Mot. to
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`Dismiss at 8. Rather, according to Sheriff Kincaid, “it is an identity disorder not resulting
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`from physical impairments.” Id. The district court adopted this argument and dismissed
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`the ADA and Rehabilitation Act claims against Sheriff Kincaid. The court also dismissed
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`the claims against Nurse Wang and Deputy Garcia, holding that most were barred by the
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`statute of limitations and that the acts alleged to have taken place within the limitations
`6
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`period were insufficient to state claims against those defendants. Finally, the court held
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`that the gross negligence claims against Sheriff Kincaid and Deputy Garcia failed because
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`they had exhibited “some degree of care for inmates such as” Williams.
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`Williams timely noted this appeal.
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`II.
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`We first address Williams’ claims against Sheriff Kincaid under the ADA and the
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`Rehabilitation Act,1 reviewing de novo the district court’s dismissal of those claims under
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`Rule 12(b)(6). Gerner v. County of Chesterfield, 674 F.3d 264, 266 (4th Cir. 2012). In
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`reviewing a 12(b)(6) motion, we must “draw all reasonable inferences in favor of the
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`plaintiff.” King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). To survive such a
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`motion, a complaint must contain facts that, if true, “state a claim to relief that is plausible
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`on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007)). “The recitation of facts need not be particularly
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`detailed, and the chance of success need not be particularly high.” Owens v. Baltimore
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`City State’s Att’ys Office, 767 F.3d 379, 403 (4th Cir. 2014).
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`Among its protections, the ADA prohibits public entities from discriminating
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`against, or excluding from participation in the benefits of services, programs, and activities,
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`any qualified individual with a disability. 42 U.S.C. § 12132. The ADA defines the term
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`1 Neither party asserts that the ADA and the Rehabilitation Act require different
`analyses. This is so because the two statutes provide identical protection with respect to
`the matters at issue in this case. Thus, as in National Federation of the Blind v. Lamone,
`“plaintiffs’ ADA and Rehabilitation Act claims rise and fall together,” and so “for
`simplicity our opinion combines them and principally analyzes the ADA claim.” 813 F.3d
`494, 502 n.4 (4th Cir. 2016).
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`7
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`“disability” broadly to include “a physical or mental impairment that substantially limits
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`one or more major life activities of such individual.” Id. § 12102(1)(A). Sheriff Kincaid
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`does not dispute that gender dysphoria falls within that definition.
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`Instead, the Sheriff relies on the ADA’s exclusions. The statute excludes from the
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`broad definition of “disability” — and thus from the statute’s protections — “transvestism,
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`transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not
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`resulting from physical impairments, [and] other sexual behavior disorders,” as well as
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`“compulsive gambling, kleptomania, . . . pyromania; or . . . psychoactive substance use
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`disorders resulting from current illegal use of drugs.” Id. § 12211(b) (emphasis added).
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`Sheriff Kincaid argues, and the district court held, that the exclusion for “gender identity
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`disorders not resulting from physical impairments” applied to Williams’ gender dysphoria
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`and barred her ADA claim. Whether this is so constitutes a question of first impression for
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`the federal appellate courts.
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`In addressing this question, we of course must follow Congress’ direction. After a
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`series of Supreme Court decisions narrowing the ADA, Congress responded in 2008 by
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`instructing courts in an amendment to the ADA that the definition of “disability” “shall be
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`construed in favor of broad coverage of individuals under this chapter, to the maximum
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`extent permitted by the [ADA’s] terms.” Id. § 12102(4)(A). In doing so, “Congress
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`expressly directed courts to construe the amended [ADA] as broadly as possible.”
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`Summers v. Altarum Inst., Corp., 740 F.3d 325, 332 (4th Cir. 2014). Moreover, because
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`the 2008 amendments to the ADA were “intended to make it ‘easier for people with
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`disabilities to obtain protection under the ADA,’” Jacobs v. N.C. Admin. Off. of the Cts.,
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`780 F.3d 562, 572 (4th Cir. 2015) (quoting 29 C.F.R. § 1630.1(c)(4)), courts must construe
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`the ADA’s exclusions narrowly. See Alexander v. Carrington Mortgage Servs., LLC, 23
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`F.4th 370, 374 (4th Cir. 2022).
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`Williams poses two challenges to the district court’s holding that she suffers from a
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`“gender identity disorder[] not resulting from physical impairments.” First, she contends
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`that gender dysphoria categorically is not a “gender identity disorder[].” Second, Williams
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`argues that even if her gender dysphoria is a “gender identity disorder[],” it results from a
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`physical basis that places it outside the scope of the exclusion from ADA protection.
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`Appellant Br. at 32. We consider each of these arguments in turn.
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`A.
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`We begin with Williams’ first contention: that gender dysphoria categorically is not
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`a “gender identity disorder[],” and so the exclusion from ADA protection of “gender
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`identity disorders” does not affect ADA coverage for gender dysphoria. The text of the
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`ADA does not define the term “gender identity disorders” and does not mention gender
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`dysphoria at all. Thus, although the ADA specifically lists a number of exclusions from
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`the definition of “disability,” that list does not include gender dysphoria. To determine
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`whether “gender identity disorders” includes gender dysphoria, we must look to the
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`meaning of the ADA’s “terms at the time of its enactment.” Bostock v. Clayton County,
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`140 S. Ct. 1731, 1738 (2020). That examination reveals that in 1990, “the time of the
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`statute’s adoption,” “gender identity disorders” did not include gender dysphoria. Id.
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`In fact, in 1990, the medical community did not acknowledge gender dysphoria
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`either as an independent diagnosis or as a subset of any other condition. But it did
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`recognize a class of other disorders that it characterized as “gender identity disorders.”
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`According to the then-current version of the Diagnostic and Statistical Manual of Mental
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`Disorders (DSM), “[t]he essential feature” of a “gender identity disorder” was “an
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`incongruence between assigned sex (i.e., the sex that is recorded on the birth certificate)
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`and gender identity.” Am. Psych. Ass’n, Diagnostic and Statistical Manual 71 (3d ed., rev.
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`1987) (DSM-III-R); see Hall v. Florida, 572 U.S. 701, 704 (2014) (describing the DSM as
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`“one of the basic texts used by psychiatrists and other experts”). We have recently
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`recognized precisely this point: that a diagnosis of “gender identity disorder . . . indicat[ed]
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`that the clinical problem was the discordant gender identity.” Grimm v. Gloucester Cnty.
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`Sch. Bd., 972 F.3d 586, 611 (4th Cir. 2020) (internal citation omitted), cert. denied, 141 S.
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`Ct. 2878 (2021). In other words, in 1990, the gender identity disorder diagnosis marked
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`being transgender as a mental illness. Id.
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`Crucially, advances in medical understanding led the American Psychiatric
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`Association (APA) in 2013 to remove “gender identity disorders” from the most recent
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`DSM (5th ed. 2013), the DSM-5.2 At the same time as the APA removed “gender identity
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`2 Sheriff Kincaid claims we may not consider the DSM-5 because Williams did not
`refer to it in her complaint. But the Supreme Court has recognized the DSM as a “basic
`text[] used by psychiatrists and other experts.” Hall v. Florida, 572 U.S. 701, 704 (2014).
`Notably, it is a source often referred to as authoritative by courts. See, e.g., Grimm, 972
`F.3d at 595 (relying on the DSM-5’s diagnostic criteria for gender dysphoria). We also
`note that in her complaint, Williams quotes the definition of gender dysphoria provided by
`the WPATH Standards, which itself refers health professionals to the DSM-5’s diagnostic
`criteria. Like a dictionary, the DSM-5 represents a useful source as to the meaning of a
`statutory term. Courts do not require plaintiffs to attach dictionaries to their complaints in
`order for courts to consider them. See, e.g., Bostock, 140 S. Ct. at 1740. We decline to do
`so for the DSM-5.
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`10
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`disorder” from the DSM-5, the APA added the diagnosis of “gender dysphoria,” which did
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`not exist as a diagnosis in 1990.
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`The very fact of revision suggests a meaningful difference, and the contrast between
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`the definitions of the two terms — gender identity disorder and gender dysphoria —
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`confirms that these revisions are not just semantic. Indeed, the definition of gender
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`dysphoria differs dramatically from that of the now-rejected diagnosis of “gender identity
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`disorder.” Rather than focusing exclusively on a person’s gender identity, the DSM-5
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`defines “gender dysphoria” as the “clinically significant distress” felt by some of those
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`who experience “an incongruence between their gender identity and their assigned sex.”3
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`DSM-5 at 451–53 (emphasis added); see Br. of Amici Curae, The disAbility Law Center,
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`et al. in Supp. of Appellant at 9. And the DSM-5 explains that the discomfort or distress
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`caused by gender dysphoria may result in intense anxiety, depression, suicidal ideation,
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`and even suicide. DSM-5 at 454–55. In short, “being trans alone cannot sustain a diagnosis
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`of gender dysphoria under the DSM-[5], as it could for a diagnosis of gender identity
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`disorder under [earlier versions of the DSM].” Ali Szemanski, Note, Why Trans Rights
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`Are Disability Rights: The Promises and Perils of Seeking Gender Dysphoria Coverage
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`Under the Americans with Disabilities Act, 43 Harv. J. L. & Gender 137, 147 (2020). For
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`3 The WPATH Standards similarly define “gender dysphoria” as “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).” WPATH Standards at 2; see also Grimm, 972 F.3d at 595 (describing
`the WPATH Standards as “represent[ing] the consensus approach of the medical and
`mental health community . . . [and] recognized by various courts, including this one, as the
`authoritative standards of care”).
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`if a transgender person does not experience “clinically significant distress,” she could not
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`be diagnosed as having gender dysphoria under the DSM-5. See DSM-5 at 453 (emphasis
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`added).
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`Reflecting this shift in medical understanding, we and other courts have thus
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`explained that a diagnosis of gender dysphoria, unlike that of “gender identity disorder[],”
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`concerns itself primarily with distress and other disabling symptoms, rather than simply
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`being transgender. In Grimm, we further explained that “left untreated, gender dysphoria
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`can cause, among other things, depression, substance use, self-mutilation, other self-harm,
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`and suicide.” 972 F.3d at 595. Similarly, the Ninth Circuit has pointed out that “[f]ailure
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`to follow an appropriate treatment plan [for gender dysphoria] can expose transgender
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`individuals to a serious risk of psychological and physical harm.” Edmo v. Corizon, Inc.,
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`935 F.3d 757, 771 (9th Cir. 2019).
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`Not only are “gender identity disorder” and gender dysphoria characterized by
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`different symptoms; they also affect different populations. As Williams acknowledges in
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`her complaint, “gender dysphoria” is “a disability suffered by many (but certainly not all)
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`transgender people.” Am. Compl. ¶ 2; see also Kevin M. Barry et al., A Bare Desire to
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`Harm: Transgender People and the Equal Protection Clause, 57 B.C. L. Rev. 507, 516
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`(2016) (“For many transgender people, the incongruence between gender identity and
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`assigned sex does not interfere with their lives; they are completely comfortable living just
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`the way they are.”); DSM-5 at 451 (“[N]ot all individuals will experience distress as a
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`result of such [gender] incongruence.”). But “[f]or a subset of transgender people . . . the
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`incongruence results in gender dysphoria — i.e., a feeling of stress and discomfort with
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`one’s assigned sex.” Barry et al., A Bare Desire to Harm, at 516.4
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`In sum, the APA’s removal of the “gender identity disorder” diagnosis and the
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`addition of the “gender dysphoria” diagnosis to the DSM-5 reflected a significant shift in
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`medical understanding. The obsolete diagnosis focused solely on cross-gender
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`identification; the modern one on clinically significant distress. The DSM-5 itself
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`emphasizes this distinction, explaining that the gender dysphoria diagnosis “focuses on
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`dysphoria as the clinical problem, not identity per se.” DSM-5 at 451. Put simply, while
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`the older DSM pathologized the very existence of transgender people, the recent DSM-5’s
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`diagnosis of gender dysphoria takes as a given that being transgender is not a disability and
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`affirms that a transgender person’s medical needs are just as deserving of treatment and
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`protection as anyone else’s.
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`4 Sheriff Kincaid offers little in the way of a response to Williams’ argument that
`gender dysphoria does not constitute a “gender identity disorder.” Arguably, her “passing
`shot” amounts to waiver. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th
`Cir. 2017). But even if not waived, any argument that can be gleaned from the Sheriff’s
`brief on this question is totally unpersuasive. The Sheriff relies on a page-and-a-half press
`release, which she asserts the APA released alongside the DSM-5, and which characterizes
`gender dysphoria as “a revision of DSM-IV’s criteria for gender identity disorder.”
`Appellee Br. at 18 (quoting Gender Dysphoria, Am. Psych. Ass’n (2013), available at
`https://www.psychiatry.org/File%20Library/Psychiatrists/Practice/DSM/APA_DSM-5-
`Gender-Dysphoria.pdf). Our colleague in the dissent similarly relies heavily on that
`excerpted quotation. But this language seems to us an innocuous generalization; it is far
`from a statement that “gender identity disorder” and gender dysphoria are identical.
`Rather, the press release makes the same crucial point as Williams does, i.e.: “It is
`important to note that gender nonconformity is not in itself a mental disorder. The critical
`element of gender dysphoria is the presence of clinically significant distress.” Id. at 1.
`Even if there were some inconsistency between the press release and the DSM-5, we rely
`on the latter, as it is the DSM itself that represents the consensus and authoritative view of
`“psychiatrists and other experts.” Hall, 572 U.S. at 704.
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`Thus, the ADA excludes from its protection anything falling within the plain
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`meaning of “gender identity disorders,” as that term was understood “at the time of its
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`enactment.” Bostock, 140 S. Ct. at 1738. But nothing in the ADA, then or now, compels
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`the conclusion that gender dysphoria constitutes a “gender identity disorder” excluded from
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`ADA protection. For these reasons, we agree with Williams that, as a matter of statutory
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`construction, gender dysphoria is not a gender identity disorder.5
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`And even putting aside our legal conclusion, at this early stage in the litigation, a
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`dismissal of Williams’ ADA claims would misunderstand the generosity with which
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`complaints are to be reviewed. See Bd. of Trs. v. Four-C-Aire, Inc., 929 F.3d 135, 152 (4th
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`Cir. 2019) (“When considering the sufficiency of a complaint’s allegations under a
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`Rule 12(b)(6) motion, courts must construe the complaint ‘liberally so as to do substantial
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`justice.’” (quoting Hall v. DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017))). The
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`difference between “gender identity disorders” and gender dysphoria, as revealed by the
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`DSM and the WPATH Standards, would be more than enough support to “nudge
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`[Williams’] claims” that gender dysphoria falls entirely outside of § 12211(b)’s exclusion
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`5 The dissent insists that Williams’ gender dysphoria must constitute a “gender
`identity disorder” because, as defined by the now-outdated DSM-III-R, a diagnosis of
`gender identity disorder required evidence of “[p]ersistent discomfort and [a] sense of
`inappropriateness about one’s assigned sex.” DSM-III-R at 76. The dissent reasons that
`this sense of “[p]ersistent discomfort” sounds like the distress that defines a diagnosis of
`gender dysphoria under the DSM-5. But this contention simply misses the point. Even if
`there are similarities between the now-obsolete definition of gender identity disorder and
`the DSM-5’s definition of gender dysphoria, the diagnosis of gender identity disorder
`referred to in § 12211(b) no longer exists. As we have explained, the differences between
`these two diagnoses are not merely semantic or the result of “linguistic drift.” Equating
`the two is like equating the now-obsolete diagnosis of hysteria with the modern diagnosis
`of general anxiety disorder simply because they share a common diagnostic criterium.
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`for “gender identity disorders” “across the line from conceivable to plausible.” Twombly,
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`550 U.S. at 570.6
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`Moreover, given Congress’ express instruction that courts construe the ADA in
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`favor of maximum protection for those with disabilities, we could not adopt an
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`unnecessarily restrictive reading of the ADA. To so hold would be for a court to take it
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`upon itself to rewrite the statute in two impermissible ways: by penciling a new condition
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`into the list of exclusions, and by erasing Congress’ command to construe the ADA as
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`broadly as the text permits. We cannot add to the ADA’s list of exclusions when Congress
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`has not chosen to do so itself.
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`B.
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`Williams also contends that even if gender dysphoria and “gender identity
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`disorder[]” were not categorically distinct, as we have held, her gender dysphoria
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`nevertheless falls within the ADA’s safe harbor for “gender identity disorders . . . resulting
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`from physical impairments.” Thus, Williams maintains that we must reverse the district
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`6 Although no circuit court has answered the precise question before us, we note
`that this conclusion accords with a growing number of district courts that have addressed
`this question. See, e.g., Venson v. Gregson, No. 3:18-cv-2185, 2021 WL 673371 (S.D. Ill.
`Feb. 22, 2021); Iglesias v. True, 403 F. Supp. 3d 680 (S.D. Ill. 2019); Doe v. Mass. Dep’t
`of Corr., 2018 WL 2994403 (D. Mass. 2018); Edmo v. Idaho Dep’t of Corr., No. 1:17-cv-
`00151, 2018 WL 2745898 (D. Idaho June 7, 2018); Blatt v. Cabela’s Retail, Inc., No. 5:14-
`cv-04822, 2017 WL 2178123 (E.D. Pa. May 18, 2017).
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`court’s dismissal of her ADA claims for an additional and independent reason — because
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`her gender dysphoria has a “known physical basis.” Br. of Appellant at 36.
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`In response, Sheriff Kincaid does not argue that gender dysphoria never results from
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`a physical impairment; she concedes that it sometimes may. See Br. of Appellees at 15
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`(“[T]he question is not whether gender dysphoria could possibly be the result of the
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`physical impairment . . . .” (emphasis added)); id. at 19 (noting that the DSM “indicates
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`that gender dysphoria can result from a disorder of sex development, which would equate
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`to resulting from physical impairment”). Rather, Sheriff Kincaid contends that Williams
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`failed to explicitly plead that her gender dysphoria was the result of a physical impairment.
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`Appellee Br. at 15. The district court (apparently assuming that gender dysphoria is a
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`“gender identity disorder”) based its dismissal of the ADA claim on this rationale alone.
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`In determining the correctness of this legal conclusion, we are once again guided by
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`Congress’ mandate that we must construe the definition of “disability” as broadly as the
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`text of the ADA permits. 42 U.S.C. § 12102(4)(A). Though the statute itself does not
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`define
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`the phrase “physical
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`impairments,”
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`the Equal Employment Opportunity
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`Commission (EEOC) has promulgated regulations defining the term expansively as “[a]ny
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`physiological disorder or condition . . . affecting one or more body systems, such as
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`neurological . . . and endocrine.” 28 C.F.R. § 35.108(b)(1)(i). And we must defer to the
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`EEOC’s reasonable interpretations of ambiguous terms in the ADA. See Summers, 740
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`F.3d at 331–32.
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`In light of the broad scope of the ADA and the implementing regulations, we
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`conclude that Williams has alleged sufficient facts to render plausible the inference that
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`her gender dysphoria “result[s] from physical impairments.” 42 U.S.C. § 12211(b)(1).
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`Williams alleges that the medical treatment for her gender dysphoria “consisted primarily
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`of a hormone therapy, which she used to effectively manage and alleviate the gender
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`dysphoria she experienced,” and that she had received this medical treatment for fifteen
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`years. Am. Compl. ¶ 14. Thus, contrary to the dissent’s assertion, Williams does not
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`merely allege that gender dysphoria may require physical treatment such as hormone
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`therapy; she maintains that her gender dysphoria requires it. Indeed, she invokes her need
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`for hormone treatment in her complaint upwards of ten times. She explains that hormone
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`treatment enables “feminization or masculinization of the body.” Id. ¶ 29. And she alleges
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`that without it, when the prison failed to provide this treatment, she experienced, inter alia,
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`“emotional, psychological, and physical distress.” Id. ¶ 123 (emphasis added).
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`These allegations suffice to raise “the reasonable inference” that Williams’ gender
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`dysphoria results from a physical impairment. Iqbal, 556 U.S. at 678. In particular, the
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`need for hormone therapy may well indicate that her gender dysphoria has some physical
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`basis. See Grimm, 972 F.3d at 596 (describing “hormone therapy” as a “physical transition
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`treatment[]”). That Williams did not “specifically allege that her gender dysphoria is
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`rooted in some physical component” by using those particular words does not render
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`implausible the inference that her gender dysphoria has a physical basis. Doe v. Pa. Dep’t
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`of Corr., No. 1:20-cv-00023, 2021 WL 1583556, at *11–12 (W.D. Pa. Feb. 19, 2021)
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`(relying on plaintiff’s argument “that the DSM-[5] provides evidence of a physical source”
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`
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`17
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`to conclude she plausibly alleged her gender dysphoria falls “outside of the statutory
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`exclusion”).
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`Indeed, in addition to the allegations regarding her hormone treatment, Williams
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`points to medical and scientific research identifying possible physical bases of gender
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`dysphoria.7 The Department of Justice has agreed that this emerging research renders the
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`inference that gender dysphoria has a physical basis sufficiently plausible to survive a
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`motion to dismiss. See, e.g., Statement of Interest of the United States of America at 1–2,
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`Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-4822 (E.D. Pa. Nov. 16, 2015) (“In light of the
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`evolving scientific evidence suggesting that gender dysphoria may have a physical basis,
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`along with the remedial nature of the ADA and the relevant statutory and regulatory
`
`provisions directing that the term ‘di