The Supreme Court is scheduled to decide as soon as this week if it will hear a case about whether individuals suffering from gender dysphoria are protected by the Americans with Disabilities Act (ADA).

The petition (pdf) in the case Kincaid v. Williams (court file 22-633) was filed in January.

The respondent, Kesha Williams, a former detainee in the county who was born male and now identifies as female, is suing the petitioner, Stacey Kincaid, a Democrat, in her official capacity as the sheriff of Fairfax County, Virginia.

Williams suffers from gender dysphoria, which can be defined as “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.” Williams claimed he was mistreated and discriminated against while in the custody of the county, which failed to take his wish to have his female identity acknowledged into account.

A lack of linguistic clarity has clouded legal issues in recent years as the concepts of sex and sexual identity or gender have become difficult to separate. Despite the distinct usual meanings of “sex” and “gender,” many institutions and individuals use “gender” to mean biological sex.

The Supreme Court has previously ventured into the culturally contentious realm of gender identity.

The court ruled 6-3 in June 2020 that employees can’t be fired from their jobs because of discrimination over their sexual orientation or gender identity. The court embraced the concept of gender identity, which critics say is a social malaise that has been politicized, with solutions that have not been based on rigorous science.

The landmark ruling three years ago in Bostock v. Clayton County, which bundled three cases together, brought an expanded meaning to the phrase “on the basis of sex” that appears in the nondiscrimination provisions of the Civil Rights Act of 1964.

Former funeral home employee Aimee Stephens, who was born male and was formerly known as William Anthony Beasley Stephens, informed his employer that he planned to dress as a woman at work. The Christian owner of the business said he was free to do so in his private life, but not at work because presenting as a woman would upset mourners. The Supreme Court ruled in favor of Stephens.

In the area of LGBT law, in 2015, the court gave same-sex couples the right to marry in the 5–4 decision of Obergefell v. Hodges.

Case as Former Detainee

Williams’s story goes back to 2018 when he was incarcerated for six months by Fairfax County in facilities overseen by Kincaid. In the beginning, Williams was placed in women’s housing but was later moved to men’s housing. Williams had reportedly been taking hormone treatments for 15 years but had not had genital surgery.

Williams claimed his prescription hormone medication was taken away and that he was transferred to men’s housing after staffers refused to go along with his wish to be treated like a woman. He claimed his medical treatment was delayed and that he was harassed by fellow inmates and guards. Williams also claimed his requests to shower in private and have body searches performed by female deputies were denied, according to a SCOTUSblog summary.

Williams, who lives in Silver Spring, Maryland, told British newspaper The Independent a year ago that his bras were taken away in jail and he was told he could not purchase any at the facility’s commissary.

When he complained about how he was treated, a counselor told him, “boys will be boys” and that he needed to wait out his time.

“I have to fight for the next girl, every other girl who has to go through this,” Williams, 41 at the time, said in an interview. “You’re being physically, mentally abused.”

After his release, Williams sued, alleging the county ran afoul of the ADA by failing to accommodate his gender dysphoria.

The ADA was signed into law by the late President George H.W. Bush in 1990 and amended in 2008.

Kincaid denies the county violated the ADA, arguing that Williams’s condition is not covered by the law.

The law provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity,” Kincaid’s petition states.

But the ADA excludes from its definition of disability “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.”

A U.S. district court agreed with Kincaid and dismissed the case, finding that Williams’s condition was not a disability within the meaning of the ADA.

But a divided panel of the U.S. Court of Appeals for the 4th Circuit ruled in favor of Williams in August 2022.

The panel determined that the definition of “gender identity disorder” in use when the ADA was enacted has since been removed from the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association.

The appeals court held that the statute should be interpreted to cover gender dysphoria in order to “avoid a serious constitutional question” that would arise if the law were read to “discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment.”

Circuit Judge Marvin Quattlebaum, who was appointed by former President Donald Trump, concurred in part and dissented in part from the panel’s ruling. He wrote that gender dysphoria was covered under the phrase “gender identity disorders” in the Act. To hold otherwise would give groups like the American Psychiatric Association “the power to effectively modify statutes passed by Congress and signed into law by the President. That cannot be right.”

Meanwhile, the petition was scheduled to be considered by the Supreme Court justices at their conference on June 15. The court is scheduled to announce new decisions on petitions on June 20. The petition was previously considered in conference by justices on six occasions over the past five months but they did not take action on it.

For a case to be scheduled for oral argument, at least four of the nine justices have to vote to grant the petition.

The Epoch Times reached out for comment to Kincaid’s attorney, Alexander Francuzenko of Cook Craig and Francuzenko, in Fairfax, Virginia; and Williams’s attorney, Katherine Lynn Herrmann of Erlich Law Office in Arlington, Virginia, but had not received a reply from either as of press time.

The Supreme Court is close to wrapping up its current term, in which it has issued 41 opinions in argued cases. About another 20 opinions are expected before the court recesses for the summer, possibly at the end of the month. After that, its new term begins on the first Monday in October.

This article by Matthew Vadum appeared June 18, 2023, in The Epoch Times. It was updated June 19, 2023.