Regardless of whatever else you may think about Kesha Williams, she was committed to being a woman. That’s how she lived for 15 years, how her drivers license read and why she took hormones. This was someone who was sincere. So when she was pulled from the women’s side of the Fairfax County Detention Center and put into the male side, what the hell did they expect to happen?
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.
She was denied her hormones, harassed for being transsexual and put at risk for no reason as there was, apparently, no problem with her being on the women’s side of the prison other than the fact that she had a penis. If it wasn’t a problem, then why make it a problem? Because prisons are run, at best, by grocery clerks with checklists.
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. 42 U.S.C. § 12132. The ADA defines the term “disability” broadly to include “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Id. § 12102(1)(A). Sheriff Kincaid does not dispute that gender dysphoria falls within that definition.
There was, of course, no reason to dispute whether gender dyphoria is a disability because the Americans with Disabilities Act excluded it regardless.
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.” Id. § 12211(b) (emphasis added).
Sheriff Kincaid argues, and the district court held, that the exclusion for “gender identity
disorders not resulting from physical impairments” applied to Williams’ gender dysphoria
and barred her ADA claim.
As there was no other avenue for Williams to argue, and the court to hold, that the sheriff, et al., discriminated against her, the focus was on whether Williams’ gender dysphoria was a “gender identity disorder” or some other disability that fell within the ADA scheme. The court, calling it a question of first impression, held it as the latter.
In fact, in 1990 [when the ADA was enacted], the medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition. But it did recognize a class of other disorders that it characterized as “gender identity disorders.” According to the then-current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM), “[t]he essential feature” of a “gender identity disorder” was “an
incongruence between assigned sex (i.e., the sex that is recorded on the birth certificate) and gender identity.” Am. Psych. Ass’n, Diagnostic and Statistical Manual 71 (3d ed., rev.
1987) (DSM-III-R); see Hall v. Florida, 572 U.S. 701, 704 (2014) (describing the DSM as “one of the basic texts used by psychiatrists and other experts”). We have recently recognized precisely this point: that a diagnosis of “gender identity disorder . . . indicat[ed] that the clinical problem was the discordant gender identity.” Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 611 (4th Cir. 2020) (internal citation omitted), cert. denied, 141 S. Ct. 2878 (2021). In other words, in 1990, the gender identity disorder diagnosis marked being transgender as a mental illness.
And so it was squarely within the exclusion included in the ADA? Not so fast.
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. At the same time as the APA removed “gender identity disorder” from the DSM-5, the APA added the diagnosis of “gender dysphoria,” which did not exist as a diagnosis in 1990.
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.”
In other words the APA redefined a subset of gender identity disorders by giving it the name gender dysphoria and, the court held, thereby removed it from the statutory exclusion, ironically finding the purely semantic change to be “not just semantic.”
While the court’s holding is not entirely surprising given the nature of the case and the needlessly improper treatment Williams received, a situation which never should have occurred and put a prisoner at mental and physical risk of harm, the net result is that the Fourth Circuit has undermined a core exclusion of the ADA with what may be a well-intended, but logically and linguistically ridiculous argument that will have unintended consequences downstream when it comes to the myriad other applications of the ADA. All for a problem needlessly created by Sheriff Stacey Kincaid and her crew in contravention of her duty to protect the safety of her prison charges. Her screw-up has now produced bad law which will haunt the rest of the Fourth Circuit, perhaps others, because Kesha Williams had a penis.
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I once took a class with a group of Fairfax County deputies. One who worked at the jail talked about how much he enjoyed having opportunities to “lay hands” on prisoners. Not when he had to do it, but when he got to do it. He wasn’t alone. I’d hoped that Sheriff Kincaid could change the culture, but it seems as if she isn’t even trying.
This is, sadly, part of any bureaucracy. Once the decision was made to treat Kesha Williams as male, then everything else that followed was a logical extension of that first decision. And once a bureaucracy has made a decision, it takes a lot of effort to change it. In such cases, there has to be someone who looks at the facts and goes ‘This is ridiculous’. Unfortunately, no such person emerged in this crisis.
What are corrections facilities to do? Only last month, there were stories online about a New Jersey correctional facility for women that had to transfer Demi Minor, a [Ed. Note] with a penis, after Minor impregnated two inmates who were biological women. Unless we are going to have “separate but equal” facilities especially for [Ed. Note] inmates, corrections departments are at risk no matter what call they make. Creative judicial acrobatics with the ADA are not going to resolve these issues.
Well, correctional facilities could train their staff not to go out of their way to mock someone like Williams. They could make reasonable accommodations like letting her shower alone. They could crack down on harassment from other inmates. I’ve been to the Fairfax County ADC many times. The layout is such that deputies can usually know if such harassment is going on, particularly if it is pervasive.
It’s not as if corrections officers have to throw up their hands and do nothing, nor is the choice only between extremes of going along with any and all inmate identities versus throwing a vulnerable inmate into a place where they are likely to be abused and then tacitly encouraging that abuse through the use of language or a failure to supervise.
Sheriff Kincaid is a Democrat, and thus doesn’t face any serious GOP opposition in general elections. When she was first elected to a full term in 2015 her GOP opponent ran on a platform of, among other things, putting cameras in the ADC. He got nowhere, as the GOP does there in county-wide elections. (They do win some district elections from time to time.) I don’t know if the situation has changed or not since then, but the County has some history with not treating inmates appropriately.
“So when she was pulled from the women’s side of the Fairfax County Detention Center and put into the male side, what the hell did they expect to happen?”
You’re making the rhetorical slight of hand clear here: this was not a move from the “women’s side” to the male side, it was from the ‘female’ side.
“for no reason as there was, apparently, no problem with her being on the women’s side of the prison other than the fact that she had a penis.”
The problem is that Kesha has a penis because Kesha is male, and so is not included with the female inmates.
If the problem is that Kesha is not safe included with males, it does not mean the solution is to use the female inmates as human shields. You may be comfortable saying that Kesha is no threat to them, but it’s not your skin in the game and there are numerous instances of female inmates being assaulted and raped when imprisoned alongside males – yes, not Kesha specifically, but there needs to be an actual principal here – so what policy are you proposing?
The only coherent solution, as long as we agree that sex segregation in prisons is necessary for the protection of female inmates, is that all male prisoners need to be made safe in their own accomodations; if the facts were the same but Kesha did not claim to be “a woman” (which begs the question of what that means other than ‘female human’) would being assaulted by male inmates be acceptable?
“The only coherent solution, as long as we agree that sex segregation in [x] is necessary”
But they don’t agree, so the only coherent “solution” we are being marched toward for any of these contexts is unisex institutions and facilities.
I think you’re wrong on that actually – in my experience the people who acknowledge that their position is explicitly ending sex segregation entirely, whether in prison, sports, or anything else. There tends to be a very strong overlap with the “prisons shouldn’t exist at all” crowd and while I think they are not being realistic it is at least a position where you can have a discussion about what’s being proposed.
Instead it’s almost invariably like SHG’s post – a sympathetic case, a handwaving of the facts and consequences, language with some level of semantic games to imply that sex segregation is still being enforced and often a complete and total rejection of any language that allows discussing or even formulating what a real policy would look like.
Even those that don’t admit to that – or even think they want that – are driving us down that road by dismantling the arguments for sex segregation.
They are highly unlikely to say it at this point about prisons, as it is still almost universally unpalatable in that context. The outcomes can take a few evolutionary stages to unfold, but we are being steered inevitably in that direction with the new gender-over-sex framework.
Even before that point, gender segregation without sex segregation is a unisex outcome. And once the arguments for sex segregation are delegitimized what are the arguments for gender segregation? Outside of upgrading to a new and improved patriarchal caste system built upon its own arbitrary categories instead of nature’s, at least.
With sports and restrooms the unisex argument – and even more so the mocking of concerns about it – has gone from off the radar to increasingly common just over the past couple years as the partisan culture wars started capitalizing on it. Prison will take a little longer, but our capacity for self-righteous hatred combined with tribal politics can move mountains.
Hi John. I disagree with nearly everything you said, but don’t want unisex prisons or the end of all prisons everywhere. Well, you might call what I want unisex, but I don’t. It’s hard when our definitions don’t really line up, so I’ll try to speak your language where I can. I’m not trying to be snarky or anything like that. My questions are sincere. I always, always get told I’m completely wrong about this, so I had to take the chance myself to do the same.
Assuming the overarching goal of prisons is to keep all inmates in their care and custody safe and alive, it would be perfectly fine to house Kesha with women or females or whatever you want to call them. I’ll concede the chromosomes might not line up. I’m still ok with XY being grouped with XX in certain circumstances. It’s a more individualized risk assessment, which may take more effort to accomplish, but so be it. This isn’t so simple as penis and not penis as you seem to paint it.
On that, would sex change operations matter to you? Blood still says XY, that’s a male in your book despite what’s in her pants or on her chest. In my book she’s a female, though different than other females, sure. You brought up the genitalia, after all. I’m less convinced that it’s conclusive. Does she go with the men? Is she at increased risk of rape, harassment, and other abuse from them? What’s your policy?
Is rape with a penis worse or better than rape with an object? Does it depend on the object? Or is it the risk of pregnancy that makes it especially bad? If we do a study which says that inmates like Kesha housed with men stand a substantially higher chance of being raped by their fellow men, as you would say, would that change your mind? Or would you say they get segregated from other men in that case?
My “policy” is we put everyone where they are safest based upon some sort of risk evaluation. Pie in the sky, sure, but what else are we to do but reach? Fifteen years operating as a female is probably good enough. Probably would want no violent crimes or, you know, rape on the record too. It’s really the least we could do considering we expect inmates to inhabit complete hell holes. Keep them all, Kesha included, alive and safe, that is.
And I spent all this time talking about how you’re wrong instead of saying anything about the ADA or gender dysphoria or laws at all. Sorry Pops. Old habits die hard.
As I said, there are two camps who are on the opposite side to myself on this issue, and only one of them is willing to own up to the reality of what they are asking; as you make clear, you would prefer to play word games than acknowledge that you’re arguing against sex segregation. Our definitions are not different: there is no alternative means of defining ‘male’ in any coherent way that would categorize Kesha differently from myself or (assuming SHG isn’t being malicious in calling you ‘son’) you. Attempting to use chromosomes to classify is also unhelpful for a number of reasons: we are just talking about male and female inmates.
With that preamble out of the way.
I would first skip ahead slightly and note that you are building a strawman of my position by stating it is about “penis and not penis.” I only mentioned genitalia because SHG had done so, and in doing so I even was explicit that I was pointing out that the salient fact is the male sex of Kesha, of which the penis is fairly conclusive evidence. Rewinding, I would agree that the safe keeping of all inmates remanded to the system is – or should be – a fundamental, first-order concern of a prison system. Going beyond that into how we achieve that goal, I would ask you to actually define what the benefit of is in separating “men” from “women” and why that is – especially given that it is not all male prisoners that you believe need this segregation. If we’re categorizing by ‘risk assessment’, why is being male an additional risk in and of itself, and even then only for those who are willing to call themselves men? In the absence of a self-identification as a ‘woman’, why is it acceptable to you to leave an otherwise identically at risk inmate confined with male prisoners?
“Sex changes” are a euphemism and not relevant to my feelings, or reality, whatsoever; if we start from sex segregation as default, what about these procedures do you believe changes the rationale for why it is safer to keep male inmates separated from female inmates? The consequences of these operations are also completely possible to occur to men through trauma, cancer, etc; clearly it is not just the end result that is of consequence to you either.
It is not particularly relevant to anything I’m saying, but rape with a penis is absolutely worse than rape with an object, and in most jurisdictions is a different crime and punished more severely; it is not simply a risk for pregnancy but also – especially relevant in the context of prisons – STDs. It is astoundingly offensive that you so repeatedly are attempting to caricature my position as being phallocentric to excuse yourself bringing it up so much. Had SHG brought up any other feature of male-ness, the denouement of my statement would not have changed: “because Kesha is male”. But anyway, it takes no study to convince me that Kesha is at risk for rape from other male inmates (and I’m pretty sure I’ve seen such studies, albeit from self reporting) – the fundamental point is that we started from sex segregation because it is safer for female inmates to not be housed with male inmates. There are many factors which place males at risk for violence in prison, sexual and otherwise: the solution is not to chip away at the protection we have for female inmates but to address this for all male inmates and not just those who claim a specific, protected status.
We come back to your policy and discover that it actually does not require the pretense of any sex segregation, but is simply built on risk evaluations; I would greatly stress that failures of which will result in female inmates bearing the costs of a system designed to protect males. You propose a pie in the sky system for the benefit of a sliver of male inmates but resign yourself to that we expect inmates to inhabit complete hell holes: inmates should not be in hell holes, and female inmates should have the protection afforded by sex segregation.
I don’t feel you have said anything about how I am wrong at all, although perhaps your fantasy, penis-obsessed opponent would feel otherwise.
I’ve been too busy today to read this exchange, so I’ve been posting it blind. But damn, John, you think this is getting kinda long for a comment? Brevity is the soul of wit.
Is today some kind of alternate universe Tuesday?
I’m getting soft.
Letting an industry group amend legislation by changing the meaning of words to mean almost the exact opposite of the clear, unambiguous language used in a statute? What could possibly go wrong?
PK, John S,
I think this is the start of a beautiful friendship.
Him saying I was being “astoundingly offensive” sealed the deal for me, not that I can be too choosey with such things. I had fun, but it was still a mistake. I misbehaved in Pop’s shop again when I’ve been trying not to do that. And you could have replied to us, you know.
I get Bostock when it comes to cross dressing — one is treating a man who wears a dress differently than a woman who does the same thing. But in order to make a sex discrimination claim, one needs to know what the sex of the person making the claim is in order to compare the treatment given to that person as compared to others. The problem when comes in where it is legal to have sex segregated facilities. If a transwoman is a woman, denying her access to women’s facilities because of some “unwomanly” traits is stereotyping, and would arguably be sex discrimination. If a transwoman is actually a man, barring him from female facilities is treating all men equally no matter how they dress or wish to appear. Who gets to decide what the individual’s sex is? Is it the person or is facility owner?
Bostock’s holding had nothing to do with gay or transgender per se, and was a straight line sex discrimination rationale. Then Gorsuch fucked it up with his endless incoherent droning.