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ALITO, 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. 

JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting from the denial of certiorari. 

This case presents a question of great national importance that calls out for prompt review. The Fourth Circuit 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 effects. The ADA provides that “transvestism,” “transsexualism,” “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 original). As a result, all entities covered by the ADA must make

“accommodations” for any “feeling[s] of stress and discomfort” 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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ALITO, J., dissenting 

ministration of sex reassignment therapy (both the performance 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 Americans who suffer from “feeling[s] of stress and discomfort” 

resulting from their “assigned sex.” But if the Fourth Circuit’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 consequences while other courts wrestle with the same legal issue. 

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 experts and other interested parties, including in all likelihood 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 Nation 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 ambitions, the ADA sweeps across nearly every facet of public 

life. It binds all employers of meaningful size and demands 
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ALITO, 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, Virginia, 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 dysphoria,” 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 

ALITO, J., dissenting 

had pleaded a covered disability, notwithstanding the exclusions noted above, and it relied on two separate rationales. 

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 majority concluded that the term “gender identity disorders”

in the ADA refers only to a so-named psychological condition that was used in the American Psychiatric Association’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 majority held that the term is now “obsolete.” Id., at 769. In the 

panel majority’s view, the concept of gender identity disorder 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 category “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 resulting from a physical impairment. As noted, the ADA’s definition 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 disability. The ground on which the majority concluded that 

Williams’s complaint sufficiently alleged a physical impairment is not entirely clear, but the majority’s reasoning appears to be that Williams has a physical need for hormonal 

treatment because, without it, Williams experiences “‘physical distress.’” 45 F. 4th, at 771 (emphasis deleted). In addition, the majority noted “medical and scientific research

identifying possible physical bases of gender dysphoria.” 
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ALITO, J., dissenting 

Ibid. 

The panel majority sought to bolster its interpretation of

the ADA by invoking the doctrine of constitutional avoidance. 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 question” under the Equal Protection Clause. Id., at 772. Citing

Circuit precedent, the majority found that “the ADA’s exclusion 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 remarkable 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 requirements 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 diagnostic criteria for gender identity disorder in 1990, he concluded 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 discomfort from identifying as a gender different from the gender assigned at birth.” 45 F. 4th, at 782–783. He also argued 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 results from a physical impairment whenever a person has

the “physical characteristics” of a gender with which that 
 

 

6 KINCAID v. WILLIAMS 

ALITO, 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 aspects of the Fourth Circuit’s reasoning are troubling. 

First, as Judge Quattlebaum noted in dissent, both gender identity disorder and gender dysphoria have long been

identified by “‘persistent or recurrent discomfort’” in connection with “‘one’s assigned sex.’” 45 F. 4th, at 782 (quoting 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 important 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 disorders not resulting from physical impairments,” but also 

to “other sexual behavior disorders.” §12211(b)(1) (emphasis added). This final catch-all category suggests that Congress 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 Circuit 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-
 

 

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ALITO, J., dissenting 

ments” does not meaningfully distinguish physical impairments from “mental impairment[s],” which the ADA recognizes 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 impairments are caused by an independent physical trait that itself qualifies as an impairment.1 Significantly more analysis 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 considerations that Congress may have had in mind in adopting 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 concerns.” 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 uncharitable to say, as the Fourth Circuit did, that “[t]he only 

reason we can glean” for excluding gender identity disorders 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 

—————— 1The 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 independent impairments. See 45 F. 4th 759, 788, n. 7 (2022) (Quattlebaum, J., 

dissenting) (discussing “ ‘physical intersexuality’ ” of the sex organs). 
 

 

 

 

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ALITO, J., dissenting 

panel majority allowed to go forward in this particular case.

Those claims sought relief for the distress caused by sexspecific housing, the failure to provide or facilitate hormone 

treatment, and the use in relation to Williams of the pronoun “he,” forms of address like “mister” and “sir,” and the 

term “gentleman.” Id., at 764 (internal quotation marks 

omitted). Permitting such claims suggests numerous further 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 substantial distress, then such a claim may be brought against 

any “place of lodging,” “service establishment,” “elementary, secondary, undergraduate, or postgraduate private 

school,” or “homeless shelter” with sex-specific bathrooms 

or dormitories. See §§12181(7)(A), (F), (J), (K).2 Educational 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 allows a cause of action for not facilitating hormone treatment, 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 process 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 coworker using the pronoun or form of address that this coworker prefers, then any of the above institutions or any 

other (broadly defined) place of public accommodation is put 

—————— 2Of 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 Williams was actually endangered by being housed with men, the Fourth 

Circuit allowed a state tort claim to proceed; that holding is not challenged, and I do not question it here. 
Cite as: 600 U. S. ____ (2023) 9 

ALITO, 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 liability, 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 provision of a federal law inoperative and, given the broad reach 

of the ADA and the Rehabilitation Act, will have far-reaching 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 address the needs of transgender persons in single-sex facilities, 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 respectfully dissent. 

—————— 3See, 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 activity”).