Kincaid v. Williams

1 Cite as: 600 U. S. ____ (2023)
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LITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
STACEY A. KINCAID, SHERIFF, FAIRFAX COUNTY,
VIRGINIA v. KESHA T. WILLIAMS
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22–633. Decided June 30, 2023
The petition for a writ of certiorari is denied.
J
USTICE ALITO, with whom JUSTICE THOMAS joins, dis-
senting from the denial of certiorari.
This case presents a question of great national im-
portance that calls out for prompt review. The Fourth Cir-
cuit has effectively invalidated a major provision of the
Americans with Disabilities Act (ADA), and that decision is
certain to have far-reaching and highly controversial ef-
fects. The ADA provides that “transvestism,” “transsexual-
ism,” “gender identity disorders not resulting from physical
impairments,” and “other sexual behavior disorders” are
not “ ‘disabilit[ies]’ ” within the meaning of its terms. 42
U. S. C. §12211(b). Nevertheless, the Fourth Circuit held
that because “gender identity disorder” is a “now-obsolete”
term in the field of psychiatry, that statutory category “no
longer exists” and has therefore ceased to have any effect.
45 F. 4th 759, 768–769, and n. 5 (2022) (emphasis in origi-
nal). As a result, all entities covered by the ADA must make
“accommodations” for any “feeling[s] of stress and discom-
fort” that result from a person’s “assigned sex.” Id., at 768
(internal quotation marks omitted); see, e.g.,
§§12112(b)(5)(A), 12182(b)(2)(A)(ii).
This decision will raise a host of important and sensitive
questions regarding such matters as participation in
women’s and girls’ sports, access to single-sex restrooms
and housing, the use of traditional pronouns, and the ad-

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LITO, J., dissenting
ministration of sex reassignment therapy (both the perfor-
mance of surgery and the administration of hormones) by
physicians and at hospitals that object to such treatment on
religious or moral grounds.
If the Fourth Circuit’s decision is correct, there should be
no delay in providing the protection of the ADA to all Amer-
icans who suffer from “feeling[s] of stress and discomfort”
resulting from their “assigned sex.” But if the Fourth Cir-
cuit’s decision is wrong—and there is certainly a reasonable
argument to that effect—then the 32 million residents of
the Fourth Circuit should not have to bear the conse-
quences while other courts wrestle with the same legal is-
sue.
There are times when it is prudent for this Court to deny
review of a questionable court of appeals decision because
we may learn from the way in which other courts of appeals
and district courts handle the same question, but in this
case that prudential consideration is not sufficient to justify
the denial of prompt review. The majority and dissenting
opinions below lay out the opposing arguments, and if we
granted review, we would undoubtedly receive thorough
briefing from the parties and in amicus briefs filed by ex-
perts and other interested parties, including in all likeli-
hood the Federal Government. Under these circumstances,
in my judgment, there is no good reason for delay.
I
The ADA was landmark legislation that resulted from a
bipartisan effort to “eliminate unwarranted discrimination
against disabled individuals in order both to guarantee
those individuals equal opportunity and to provide the Na-
tion with the benefit of their consequently increased
productivity.” Cleveland v. Policy Management Systems
Corp., 526 U. S. 795, 801 (1999). In light of its bold ambi-
tions, the ADA sweeps across nearly every facet of public
life. It binds all employers of meaningful size and demands

3 Cite as: 600 U. S. ____ (2023)
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LITO, J., dissenting
that they refrain from various forms of discrimination and,
in certain circumstances, requires that they offer needed
accommodations. 42 U. S. C. §§12111(5), 12112(a), (b). It
requires all state and local government entities to ensure
that no one is “excluded from participation in or . . . denied
the benefits of” public programs and services “by reason of
[a] disability.” §12132. It requires a wide variety of private
entities, including numerous businesses and private
schools, to ensure that persons with disabilities receive “the
full and equal enjoyment” of those entities’ “goods, services,
facilities, privileges, advantages, [and] accommodations” in
a variety of ways. §§12181(7), 12182.
The ADA is far-reaching, but like all other statutes, it has
its limits. It expressly excludes coverage for a disparate
group of traits, habits, and mental conditions, including
sexual orientation, conditions arising from drug use, and
gambling addiction. §12211. And relevant here, the ADA
also excludes mental dispositions and conditions that relate
to gender expression or gender identity. See §12211(b)(1)
(referring to “transvestism, transsexualism, . . . gender
identity disorders not resulting from physical impairments,
or other sexual behavior disorders”); accord, §12208.
In this case, the plaintiff, Kesha Williams, brought suit
against Stacey Kincaid, the sheriff of Fairfax County, Vir-
ginia, based on alleged mistreatment during a stay in a
county detention center. Some of Williams’s claims arose
under state tort law–for example, a gross negligence claim
based on injuries allegedly inflicted during a body search–
and Kincaid does not ask us to consider any of those claims.
Rather, she contends only that she cannot be sued under
the ADA for failing to accommodate Williams’s “gender dys-
phoria,” by, among other things, placing Williams in men’s
housing, failing to offer hormone therapy, and permitting
“persistent and intentional misgendering and harassment.”
45 F. 4th, at 763.
The Fourth Circuit panel majority found that Williams

4 KINCAID v. WILLIAMS
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LITO, J., dissenting
had pleaded a covered disability, notwithstanding the ex-
clusions noted above, and it relied on two separate ration-
ales.
First, the majority found that the condition alleged by
Williams, i.e., “gender dysphoria,” does not constitute what
the ADA calls a “gender identity disorder.” The panel ma-
jority concluded that the term “gender identity disorders”
in the ADA refers only to a so-named psychological condi-
tion that was used in the American Psychiatric Associa-
tion’s Diagnostic and Statistical Manual at the time of the
ADA’s enactment, and because leading organizations in
that field no longer recognize that concept, the panel major-
ity held that the term is now “obsolete.” Id., at 769. In the
panel majority’s view, the concept of gender identity disor-
der encompassed all “cross-gender identification,” while the
now-accepted concept of “gender dysphoria” is defined by
stress that goes beyond “being trans alone.” Id., at 768–769
(internal quotation marks omitted). As a result, the panel
majority reasoned that “gender identity disorder” as a cat-
egory “no longer exists,” and thus the statutory exclusion is
without any effect. Id., at 769, n. 5 (emphasis in original).
Second, the majority found that Williams had adequately
pleaded an ADA claim by alleging gender dysphoria result-
ing from a physical impairment. As noted, the ADA’s defi-
nition of disability excludes “gender identity disorders not
resulting from physical impairments,” §12211(b)(1), and
therefore, if a person’s “gender dysphoria” results from a
physical impairment, that condition may qualify as a disa-
bility. The ground on which the majority concluded that
Williams’s complaint sufficiently alleged a physical impair-
ment is not entirely clear, but the majority’s reasoning ap-
pears to be that Williams has a physical need for hormonal
treatment because, without it, Williams experiences “‘phys-
ical distress.’ ” 45 F. 4th, at 771 (emphasis deleted). In ad-
dition, the majority noted “medical and scientific research
identifying possible physical bases of gender dysphoria.”

5 Cite as: 600 U. S. ____ (2023)
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LITO, J., dissenting
Ibid.
The panel majority sought to bolster its interpretation of
the ADA by invoking the doctrine of constitutional avoid-
ance. The majority argued that even if the ADA’s text did
not require this interpretation, it would nevertheless be
necessary in order “to avoid a serious constitutional ques-
tion” under the Equal Protection Clause. Id., at 772. Citing
Circuit precedent, the majority found that “the ADA’s ex-
clusion of ‘gender identity disorders’ ” from the definition of
disability was “evidence of . . . discriminatory animus” by
Congress, and to support this conclusion, the majority
pointed to “moral judgment[s]” expressed by legislators who
backed the exclusion for “gender identity disorders.” Id., at
773.
This ground-breaking interpretation of the ADA is re-
markable in itself, but the Fourth Circuit panel majority
went even further and noted that its reasoning applied
equally to Williams’s claim under the Rehabilitation Act of
1973, which extends disability-accommodation require-
ments to a different set of entities that benefit from various
forms of federal financial assistance. 45 F. 4th, at 765, n. 1;
see 29 U. S. C. §794.
Judge Quattlebaum dissented in relevant part, and set
out a reasonable contrary argument. Looking to the diag-
nostic criteria for gender identity disorder in 1990, he con-
cluded that “when the ADA was signed into law, gender
identity disorder was understood to include what Williams
alleges to be gender dysphoria,” that is, “distress and dis-
comfort from identifying as a gender different from the gen-
der assigned at birth.” 45 F. 4th, at 782–783. He also ar-
gued that the majority’s interpretation of the ADA
provision excluding gender-identity conditions causes that
provision to nullify itself. His understanding of the claim
that the majority accepted was that gender dysphoria re-
sults from a physical impairment whenever a person has
the “physical characteristics” of a gender with which that

6 KINCAID v. WILLIAMS
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LITO, J., dissenting
person does not identify and suffers distress and discomfort
as a result. Id., at 788. But that interpretation, he wrote,
“would read ‘not resulting from physical impairments’ out
of the statute.” Ibid.
By a narrow 8-to-6 vote, the Fourth Circuit denied en
banc review. 50 F. 4th 429 (2022).
II
Without full briefing and argument, I would not take a
firm view on the proper interpretation of the ADA, let alone
on the merits of Williams’s particular case. But several as-
pects of the Fourth Circuit’s reasoning are troubling.
First, as Judge Quattlebaum noted in dissent, both gen-
der identity disorder and gender dysphoria have long been
identified by “‘persistent or recurrent discomfort’” in con-
nection with “‘one’s assigned sex.’” 45 F. 4th, at 782 (quot-
ing American Psychiatric Assn., Diagnostic and Statistical
Manual of Mental Disorders 77 (rev. 3d ed. 1987)). So the
change in the field’s terminology does not obviously place
gender dysphoria outside the category of gender identity
disorders. But even setting aside Judge Quattlebaum’s im-
portant point, the Fourth Circuit’s narrow focus on the
phrase “gender dysphoria” does not engage with the broad
brush used by Congress, which barred application of the
ADA not only to “transsexualism” and “gender identity dis-
orders not resulting from physical impairments,” but also
to “other sexual behavior disorders.” §12211(b)(1) (empha-
sis added). This final catch-all category suggests that Con-
gress sought to prohibit the ADA’s application to conditions
that are sufficiently similar to the more specific categories
of conditions that precede. At a minimum, the Fourth Cir-
cuit should have explained why the catch-all provision was
insufficient to encompass gender dysphoria.
Second, the Fourth Circuit’s understanding of when a
gender identity disorder “result[s] from physical impair-

7 Cite as: 600 U. S. ____ (2023)
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LITO, J., dissenting
ments” does not meaningfully distinguish physical impair-
ments from “mental impairment[s],” which the ADA recog-
nizes as a distinct category. §§12102(1)(A), 12211(b)(1).
Many common mental impairments, such as depression
and anxiety disorders, cause real and sometimes powerful
physical distress and are treated by chemical interventions.
That does not mean, however, that those mental impair-
ments are caused by an independent physical trait that it-
self qualifies as an impairment.
1
Significantly more analy-
sis would be needed to accept an interpretation of the
exception to the exclusion that swallows the exclusion
whole.
Finally, the Fourth Circuit’s animus analysis relies too
heavily on statements made by a few Members of Congress
and does not sufficiently take into account the many con-
siderations that Congress may have had in mind in adopt-
ing a piece of major legislation like the ADA. A legislative
body “need not address all aspects of a problem in one fell
swoop; policymakers may focus on their most pressing con-
cerns.” Williams-Yulee v. Florida Bar, 575 U. S. 433, 449
(2015). Congress may also have thought that coverage of
gender-identity-related conditions would raise special free
speech and free exercise concerns. It seems more than un-
charitable to say, as the Fourth Circuit did, that “[t]he only
reason we can glean” for excluding gender identity disor-
ders is “‘a bare . . . desire to harm a politically unpopular
group.’” 45 F. 4th, at 773.
III
The potential impact of the Fourth Circuit’s decision is
difficult to overstate. Consider, first, the claims that the
——————
1
The Fourth Circuit’s reasoning is also unneeded to give meaning to
the “physical impairments” exception, as gender identity disorders do
arise in connection with physical traits that clearly qualify as independ-
ent impairments. See 45 F. 4th 759, 788, n. 7 (2022) (Quattlebaum, J.,
dissenting) (discussing “ ‘physical intersexuality’ ” of the sex organs).

8 KINCAID v. WILLIAMS
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panel majority allowed to go forward in this particular case.
Those claims sought relief for the distress caused by sex-
specific housing, the failure to provide or facilitate hormone
treatment, and the use in relation to Williams of the pro-
noun “he,” forms of address like “mister” and “sir,” and the
term “gentleman.” Id., at 764 (internal quotation marks
omitted). Permitting such claims suggests numerous fur-
ther consequences. If the ADA requires that a person be
given access to facilities reserved for the sex with which
that person identifies whenever that is needed to avoid sub-
stantial distress, then such a claim may be brought against
any “place of lodging,” “service establishment,” “elemen-
tary, secondary, undergraduate, or postgraduate private
school,” or “homeless shelter” with sex-specific bathrooms
or dormitories. See §§12181(7)(A), (F), (J), (K).
2
Educa-
tional institutions that sponsor girls’ or women’s athletic
competitions, and facilities that host such events, may be
sued if they exclude any individual who identifies as female.
§§12181(7)(C), (J), (L), 12182(b)(1)(A)(iii). If the ADA al-
lows a cause of action for not facilitating hormone treat-
ment, an ADA claim may presumably be filed against any
“hospital” or “health care provider” that declines to provide
hormone treatment or surgical procedures as part of a pro-
cess of gender transition, at least where it would provide
such hormones or similar surgery for other medical reasons.
§12181(7)(F). If the ADA allows a cause of action against
an institution whose employees decline to refer to a co-
worker using the pronoun or form of address that this co-
worker prefers, then any of the above institutions or any
other (broadly defined) place of public accommodation is put
——————
2
Of course, the uniquely dangerous context of prison presents dangers
well beyond personal distress, and such dangers may trigger numerous
legal obligations apart from the ADA. In light of the possibility that Wil-
liams was actually endangered by being housed with men, the Fourth
Circuit allowed a state tort claim to proceed; that holding is not chal-
lenged, and I do not question it here.

9 Cite as: 600 U. S. ____ (2023)
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LITO, J., dissenting
to the choice between, on the one hand, firing all employees
who refuse (perhaps for religious reasons) to speak contrary
to their beliefs on gender transition or, on the other hand,
risking ruinous lawsuits.
In short, the Fourth Circuit’s ruling leaves a great many
people and institutions under the looming threat of liabil-
ity, forcing them to change their behavior—behavior that
may be deeply rooted in moral or religious principles—or
face an unending stream of lawsuits. If it is at least possible
that the ADA does not require these results, we should be
willing to resolve the question now rather than later.
* * *
The Fourth Circuit’s decision makes an important provi-
sion of a federal law inoperative and, given the broad reach
of the ADA and the Rehabilitation Act, will have far-reach-
ing and important effects across much of civil society in that
Circuit. Voters in the affected States and the legislators
they elect will lose the authority to decide how best to ad-
dress the needs of transgender persons in single-sex facili-
ties, dormitory housing, college sports, and the like. Given
that impact, and with the legal issues well aired below and
in a variety of prior federal court decisions, I would grant
certiorari now.
3
Because the Court declines to do so, I re-
spectfully dissent.
——————
3
See, e.g., Parker v. Strawser Constr., Inc., 307 F. Supp. 3d 744, 754
(SD Ohio 2018) (surveying case law as of 2018 and concluding that “[t]he
majority of federal cases have concluded” that the ADA excludes even
those gender identity disorders that “substantially limit a major life ac-
tivity”).