by Josh Thorn*

How should courts assess whether employees suffering from symptoms associated with gender dysphoria are entitled to unpaid, job-protected leave under the Family Medical Leave Act (FMLA)? Josh Thorn (’17) explores this question, based on his experience competing at the Wagner Moot Court Competition, held at New York Law School in March 2016. The FMLA limits eligibility for leave to employees with “serious health conditions” preventing the employee from working. This Contribution urges courts to primarily consider whether the treatment required for employees diagnosed with depression and anxiety resulting from gender dysphoria — and not merely the symptoms of the condition itself — would prevent the employee from working in determining whether there exists a “serious health condition” under the FMLA.

Since its passage in 1993, the Family Medical Leave Act (FMLA) has been a vital component of employee job-protection rights; about 60% of American employees are eligible for FMLA protection, and FMLA leave has been utilized by employees over two hundred million times since its enactment.2 For many employees, the FMLA provides the only job-protected leave they are guaranteed, making it critical for many employees with serious medical needs. However, medical knowledge has made significant advances since the FMLA’s enactment, and it is important to ensure that the FMLA reflects current knowledge of health and gender issues. This article will argue that, with respect to gender dysphoria, courts should move beyond a test that primarily asks whether the health condition itself was sufficiently physically debilitating and thus a “serious health condition” under the FMLA. Instead, courts should utilize a test that mirrors the FMLA inquiry dealing with drug abuse, which asks whether the treatment—rather than the condition—would incapacitate the individual from work. Under this analysis, gender dysphoria should be recognized as a serious health condition under the FMLA.

The FMLA was passed in order to protect the ability of employees to seek and acquire medical treatment, and to ensure that individuals with health issues were not forced to choose between working and parenting, or between working and medical treatment.3 The Act, however, was not intended to be a universal panacea available for all health issues no matter how minor.4 The Act specifies that an employee is only eligible for leave under the FMLA in certain circumstances.5 To prevent employees from seeking FMLA leave for merely minor ailments, the Act limits eligibility to “serious health conditions,” defined as an “illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider,” which prevents the employee from working.6

At first glance, this seems a fairly simple and workable standard. Many health issues are fairly easily categorized as either “serious” or “non-serious.” A heart attack is serious, the flu is not; a stroke is serious, a stomach ache is not; a broken leg is serious, a broken toe is (probably) not.7 However, there are huge gaps between these “obviously” serious and non-serious conditions, and the Act is less clear—and gives less guidance—on this gray area between extremes. The Department of Labor regulations do not offer much more guidance: the examples offered of non-serious conditions are obvious ones (“the common cold, the flu, ear aches, upset stomach,” etc., as well as cosmetic treatments). But what about those conditions that do not facially prevent an employee from working, but cannot and should not be disregarded like these other minor ailments?8 It is into this middle space that gender dysphoria and gender reassignment surgery fall.


Gender dysphoria is a severe anxiety disorder; individuals who suffer from gender dysphoria experience extreme distress due to the difference between the sex they were assigned at birth and their preferred gender identity.9 This manifests as feelings of depression and anxiety. While courts have not yet taken up the issue of gender dysphoria in the context of the FMLA, cases dealing with FMLA claims for depression and anxiety are the closest analogue. Mental health issues do not cause obvious incapacity from work in the same way that physical conditions do, but courts have clearly recognized that mental health issues can be serious health conditions for the purposes of the FMLA.10 Courts have typically analyzed such FMLA claims in one of two ways, usually asking: (a) whether the condition itself caused an incapacity for work; or (b) whether treatment for the condition would necessarily cause an incapacity for work.

The Department of Labor (DOL) predicates a serious health condition on whether the employee can demonstrate an incapacity for work,11 and defines incapacity as an, “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.”12 This broad language, inclusive of both incapacity resulting from the symptoms as well as from treatment and recovery, seems necessary to accomplish the FMLA’s purposes. For example, a bad knee, by itself, might not prevent an employee from working, but knee replacement surgery is serious and the sort of serious medical treatment that ought to be accommodated, because the consequences of leaving the knee untreated can be debilitating.

However, claims under the second and third prongs of the regulation—treatment or recovery resulting in incapacity—force the employee into a circular argument. A serious health condition requires showing that the employee received inpatient care13 or continuing treatment14 that incapacitated them from work, and the employee must argue that the incapacity test is satisfied because the incapacitating treatment was for a serious health condition.

Courts have most often conducted FMLA analysis by asking first whether the condition itself has caused an incapacity for work, likely because this is a simple test to apply and avoids the circular logic implied by the second and third prongs.15 If the condition itself was serious enough to prevent the employee from being able to work, then it is serious enough for the FMLA’s “serious health condition” inquiry as well. If the condition itself was not serious enough to prevent the employee from working, then courts show little hesitation in holding that the employer’s decision to deny FMLA leave was justified.16

Focusing FMLA analysis primarily on whether the symptoms of mental illnesses have been severe enough to cause an incapacity seems logical in one sense. The severity of mental illnesses is not obviously or objectively visible in the same way that the severity of a physical condition is, and tying the FMLA analysis to the most objectively visible marker available provides a simpler test for the courts. However, to do so in the context of mental health conditions, and thus to limit FMLA leave for individuals suffering from gender dysphoria to those cases where the dysphoria itself prevents the employee from working, is irrational given that courts have granted FMLA relief in other circumstances, such as an employee’s entrance into a drug rehabilitation program.

Substance abuse can qualify as a serious health condition under the FMLA, and FMLA leave can be sought for rehab treatment programs.17 The logic of FMLA decisions regarding drug rehab runs counter to the aforementioned logic with respect to mental illnesses, because FMLA leave is available for incapacity caused by treatment programs, but not for incapacity caused by the symptoms of the substance abuse itself.18 This is likely for public policy reasons: courts want to encourage employees to seek treatment for drug abuse, but might shy away from decisions that could be seen as encouraging drug use. This policy reasoning is instructive when considering how gender dysphoria should be treated under the FMLA.

Often when courts reject FMLA claims related to depression or anxiety, they note that while medical treatment might be beneficial for the employee, it has not been shown to be medically necessary.19 But for many individuals who suffer from gender dysphoria, treatment is not merely beneficial, but also necessary.20 Just as courts encourage individuals to seek out drug rehab treatment with the understanding that substance abuse can become crippling if left untreated, so too should courts recognize that gender dysphoria can become incapacitating, and even life-threatening if left untreated, even if the gender dysphoria itself is not incapacitating when the employee applies for FMLA leave.21 Courts should not encourage a regime where employees suffering from gender dysphoria are not eligible for FMLA leave until their suffering progresses to a point where they attempt or inflict self-harm. The fact that only some individuals who suffer from gender dysphoria have an immediate medical need for gender reassignment surgery is not a compelling reason to facially deny all such FMLA claims. The affirmations of the employee’s doctors that the surgery is necessary, in addition to the seriousness of the surgery being planned, should leave courts comfortable presuming that the employee’s gender dysphoria is serious enough to qualify them for FMLA relief.


When considering gender dysphoria claims, courts would do well to reject a simplistic analysis that looks solely at whether the condition itself caused incapacity. Courts should recognize that, because gender reassignment surgery is medically necessary for many individuals, the incapacitation resulting from the proactive surgery is sufficient to satisfy the serious health condition requirement for FMLA claims.

* The following article is based on my experience in the 2016 Wagner Moot Court Competition, sponsored by New York Law School. The competition deals with questions of labor and employment law, and the 2016 case centered on an employment dispute between a transgender female employee and her employer. The employee suffered from depression and anxiety, and was diagnosed with gender dysphoria, which led her to decide to transition and undergo gender reassignment surgery. As a result of her decision, she was passed over for a promotion (which was then given to an employee with a less impressive performance record), transferred to another department with less visibility, denied FMLA relief for her surgery, and fired during her recovery, because her employer had determined that her absences were unexcused. The questions presented were: (1) does plaintiff, a transgender woman, have a lawful claim under Title VII for employment discrimination on the basis of sex discrimination? (2) does plaintiff’s diagnosis of gender dysphoria qualify as a “serious health condition” under the Family Medical Leave Act, entitling her to unpaid job-protected leave to undergo gender reassignment surgery? This Contribution focuses on the second question.

2. Family Medical Leave Act, National Partnership for Women & Families, (last visited Oct. 9, 2016, 10:00 PM).

3. 29 U.S.C. § 2601 (“[T]he lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting . . . [and] there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.”).

4. Id. (limiting focus to employees with “serious health conditions”).

5. 29 U.S.C. § 2612 (birth of a child, adoption of a child, to care for a family member with a serious health condition, a serious health condition that prevents the employee from working, or service in the Armed Forces).

6. 29 U.S.C. § 2611.

7. 29 C.F.R. § 825.113(d) (setting forth examples of what, ordinarily, would not qualify as a serious health condition, “unless complications arise”).

8. Id.

9. Memo. from John O’Brien (U.S. Office of Pers. Mgmt.), Letter No. 2015-12, Covered Benefits for Gender Transition Serv., June 23, 2014 (available at (noting the emerging consensus among health professionals that treatment is medically necessary for many individuals diagnosed with gender dysphoria).

10. See, e.g., Chandler v. Specialty Tires of Am. (Tennessee), Inc., 283 F.3d 818, 825 (6th Cir. 2002) (hospitalization for severe depression covered by the FMLA); Vasconcellos v. Cybex Int’l, Inc., 962 F. Supp. 701, 706 (D. Md. 1997) (holding that “severe nervous disorders” are covered by the FMLA).

11. 29 C.F.R. §§ 825.114–15.

12. 29 C.F.R. § 825.113(b).

13. 29 C.F.R. § 825.114 (“Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in § 825.113(b), or any subsequent treatment in connection with such inpatient care.”).

14. 29 C.F.R. § 825.115 (making “continuing treatment by a health care provider” contingent on proving a “period of incapacity” in connection with the treatment or reason for treatment).

15. See, e.g., Hurley v. Kent of Naples, Inc., 746 F.3d 1161 (11th Cir. 2014) (holding that an employee who suffered from depression but did not allege that the requested leave was for a period of incapacity did not qualify for FMLA leave); Barker v. R.T.G. Furniture Corp., 375 Fed. App’x. 966 (11th Cir. 2010) (holding that an employee who suffered from anxiety attacks which required him to take breaks from work was not qualified for FMLA leave because he was never unable to complete his work); Chandler, 283 F.3d at 825 (holding that an employee who suffered from severe depression and was hospitalized due the depression did qualify for FMLA leave).

16. See Hoffman v. Prof’l Med. Team, 394 F.3d 414 (6th Cir. 2005) (finding that an employer was justified in denying an employee’s application for FMLA leave, when the application alleged that her migraines did not prevent her from being able to work and it was only her prescribed migraine medicine, which caused drowsiness, that could prevent her from working).

17. See Gilmore v. Univ. of Rochester, 654 F. Supp. 2d 141 (W.D.N.Y. 2009).

18. See id.; Darst v. Interstate Brands Corp., 512 F.3d 903, 908 (7th Cir. 2008) (“[S]ubstance abuse may be a Serious Health Condition under certain conditions but FMLA leave may be taken only for treatment for substance abuse . . . [A]bsence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.”).

19. See Hurley, 746 F.3d at 1168.

20. O’Brien, supra note 9.

21. See, e.g., Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) (recognizing the severe consequences that can occur if gender dysphoria is left untreated); Norsworthy v. Beard, 87 F. Supp.3d 1104, 1109 (N.D. Cal. 2015) (finding plaintiff had a serious medical need for gender reassignment surgery due to the “severe mental anguish she experience[d] as a result of her gender dysphoria”).