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Out Gay Federal Judge Rejects Anonymity for Genderqueer Trans-Masculine Plaintiff

Posted on: May 7th, 2018 by Art Leonard No Comments

 

U.S. District Judge J. Paul Oetken, himself the first out gay man to be appointed a federal trial judge, has granted a motion by the defendants in an employment discrimination case to lift an order he had previously issued allowing the plaintiff, a “genderqueer and transmasculine” individual, to proceed anonymously as “Jamie Doe” in a discrimination lawsuit against their former employer, Fedcap Rehabilitation Services, and two of Fedcap’s supervisors. Judge Oetken gave the plaintiff 14 days from the April 27 ruling on FedCap’s motion to decide whether they intend to proceed with this suit using their real name.  Doe v. Fedcap Rehabilitation Services, Inc., 2018 WL 2021588, 2018 U.S. Dist. LEXIS 71174 (S.D.N.Y., April 27, 2018).

The plaintiff uses “preferred pronouns of ‘they,’ ‘their,’ and ‘theirs,” wrote the judge. “Doe” alleges that “the Defendants discriminated against Doe based on Plaintiff’s disability (breast cancer, depression, anxiety, and post-traumatic stress disorder), sexual orientation (queer), and gender (gender non-conformity/genderqueer/trans-masculine). Plaintiff also alleges that Defendants retaliated against Plaintiff for exercising their rights under the Family Medical Leave Act.  Plaintiff has since left Fedcap and found new employment.”  Upon filing the lawsuit, Doe had moved to proceed under a pseudonym. The court granted the motion without prejudice to the Defendants’ right to seek lifting of the order, which they have now done.

The starting point for the court is Rule 10(a) of the Federal Rules of Civil Procedure, which provides that “all the parties” be named in the title of a Complaint. The 2nd Circuit, which has appellate jurisdiction over cases filed in the Southern District of New York, has ruled that this requirement “serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.”  That court has commented, “When determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.”  The 2nd Circuit has identified a non-exclusive list of ten different factors that courts might consider in conducting such a balancing test.

The plaintiff identified four harms if their name is revealed in this litigation. Plaintiff says their trans-masculinity is an “intimate detail” that they don’t want to disclose through the public record; that “outing them” as trans-masculine would compound the trauma they have already suffered from the defendant’s discrimination; that “genderqueer individuals suffer disproportionately from discrimination” and “outing” them in this way would place them “at further risk of discrimination by employees at their new job,” and finally that, as a parent of school-age children, plaintiff is concerned that disclosing their identity may expose their children to bullying.”

The defendants identified three types of prejudice to them if plaintiff is allowed to proceed anonymously. First, the “non-trivial cost of sealing or redacting court filings;” second, that “anonymity might allow Plaintiff to make accusations that they would not have made if their identity were publicly known;” and third, “Defendants contend that anonymity creates an imbalance when it comes to settlement negotiations.”  The defendants, who are not anonymous, may feel public pressure to settle the case in order to avoid bad publicity, while an anonymous plaintiff might “hold out for a larger settlement because they face no such reputational risk.”

Judge Oetken concluded that the case “presents no particularly strong public interest in revealing Plaintiff’s identity beyond the ‘universal public interest in access to the identities of litigants,’” which he remarks is “not trivial.” But the public interest would not be “especially harmed if Plaintiff proceeded pseudonymously.”

However, wrote the judge, “The key issue here is the extent to which Plaintiff has already revealed their gender and sexual orientation to the general public. Defendants point to Plaintiff’s voluntary participation in a news story for a major news outlet.  In the story, Plaintiff used their real name, identified as genderqueer, and revealed other details about their gender non-conformity.  The article also featured a photograph of Plaintiff, and the picture specifically illustrated Plaintiff’s non-conformance with gender norms.”  Thus, the defendants argued, Doe had already voluntarily disclosed “the sensitive issues they seek to keep secret in this case.”

Doe disagrees, saying they have revealed their sexual orientation but not their gender identity, particularly their identity as “trans-masculine,” which would be disclosed if they have to proceed under their real name in this lawsuit. But this argument did not persuade Judge Oetken, who wrote, “But while that is true, the news story still shows that Plaintiff was comfortable with putting their gender-non-conformity in the public eye.  The Court is mindful that coming out is a delicate process, and that LGBTQ individuals may feel comfortable disclosing one aspect of their identity but uncomfortable disclosing another.  Nevertheless, Plaintiff’s very public coming out as genderqueer undermines their arguments about the harm that would be caused by disclosure of their trans-masculinity.”

The court concluded that the issue was “whether the additional disclosure of Plaintiff’s identity as trans-masculine would so harm Plaintiff as to outweigh the significant prejudice to Defendants and the public interest in access to the identities of the litigants. Plaintiff has not met that significant burden.”  Oetken suggests that Plaintiff wants “what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it,” but that is not how the civil litigation system is set up.  “Defendants – including two individuals – stand publicly accused of discrimination and harassment, including detailed allegations of misconduct.  Defendants do not have the option of proceeding pseudonymously,” commented Oetken. “Allowing Plaintiff to proceed anonymously would put Defendants at a genuine disadvantage, particularly when it comes to settlement leverage.  Courts allow such an imbalance only in unique circumstances, and Plaintiff has not shown that this is one of those special cases.”

While acknowledging that the disclosure of Doe’s trans-masculinity “would be difficult and uncomfortable,” wrote the judge, “this alone is not enough to demonstrate the exceptional circumstances required to proceed pseudonomously, especially in light of Plaintiff’s public identification as genderqueer.”

During the early years of the AIDS epidemic, many federal courts granted motions for plaintiffs suing for AIDS-related discrimination to proceed as John Doe or Jane Doe, accepting the argument that requiring them to sue under their own names would have compounded the discrimination they had suffered, especially in light of the media interest in reporting about legal issues stemming from the epidemic. Today, when there is considerable litigation by transgender individuals, including high school students seeking appropriate restroom access, it is not unusual to find that the court will refer to plaintiffs by their initials, even though the plaintiffs — represented by public interest law firms — may have revealed their names and posed for photos to publicize their cases.  One suspects that “Jaime Doe” would have been allowed to proceed anonymously had they not already appeared under their name in news stories.

Doe is represented by Brittany Alexandra Stevens of Phillips & Associates PLLC, and Marjorie Mesidor of Phillips & Phillips PLLC. Attorneys from the law firm of Epstein, Becker & Green, P.C., represent the defendants.

New York Appellate Division Rebuffs Syracuse D.A. on Felony Charges in HIV Exposure Case

Posted on: November 18th, 2013 by Art Leonard No Comments

A unanimous five-judge panel of the New York Appellate Division, 4th Department, has rejected an argument by the office of Syracuse District Attorney William Fitzpatrick that an HIV-positive man should face felony charges carrying a mandatory minimum prison term for exposing another person to HIV by failing to disclose his infection before engaging in unprotected sex.  The court approved a decision by Onondaga County Supreme Court Justice John J. Brunetti to reduce the charge to a misdemeanor in People v. Williams, 2013 N.Y. Slip. Op. 7636, 2013 N.Y. App. LEXIS 7558 (November 15, 2013).

According to the court’s opinion, Terrance Williams “engaged in unprotected sex with the victim on two to four occasions without disclosing his HIV positive status.  Shortly after their sexual relationship ended, defendant told the victim that a former sexual partner had tested positive for HIV and urged the victim to be tested.  The victim was diagnosed as HIV positive several months later.”  The victim, whose sex is not mentioned in the opinion, then complained to law enforcement.  Williams was indicted under N.Y. Penal Law Section 120.25, “reckless endangerment in the first degree,” a Class D felony with a potential prison sentence of 2-7 years.  That provision states that a person is guilty of the offence when “under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.”

Williams, represented by Kristen McDermott of the Frank H.  Hiscock Legal Aid Society in Syracuse, moved to have the charges reduced, arguing that the facts would not support the felony charge.  He had told the police that “he did not disclose his HIV positive status to the victim because he was afraid [the victim] would not want to be with” him, and that he “loved [the victim] so very much.”  When he found out the victim was diagnosed, he wrote a letter apologizing “because he was ‘so upset’ and ‘felt terrible’.”  Williams argued that these facts would not support a finding that he exhibited “depraved indifference to human life” or that his conduct created “a grave risk of death to another person.”

The victim’s doctor offered testimony that ended up supporting Williams’ motion.   As summarized in the Appellate Division’s opinion, the doctor, “an infectious disease expert, testified that the ability to treat HIV has increased dramatically over the past 15 years, with over 20 different anti-viral medications available for treatment.  The expert testified that although an HIV positive diagnosis may have been tantamount to a death sentence in the past, with treatment, the prognosis today is ‘outstanding,’ particularly when a patient promptly learns that he or she is infected and seeks treatment.  Indeed, the expert testified that patients with HIV who take their medication, eat well, do not smoke, and reduce their alcohol intake can live a ‘very healthy, normal lifestyle,’ and he expected a similar prognosis for the victim.”

In light of this testimony, Justice Brunetti agreed with the defendant that he had been over-charged, and reduced the charge to “reckless endangerment in the second degree” under Penal Law section 120.20, which is a Class A misdemeanor with a maximum prison sentence of up to one year, although a trial judge has discretion to impose penalties other than incarceration (such as, for example, community service and/or supervised probation).  The District Attorney appealed Justice Brunetti’s decision to reduce the charges, but the Appellate Division unanimously upheld Justice Brunetti.

“We conclude that, although defendant may have acted with indifference to the victim’s health, his conduct lacked the ‘wanton cruelty, brutality, or callousness’ required for a finding of depraved indifference toward a single victim,” wrote the court.  “The fact that defendant encouraged the victim to be tested for HIV indicates that defendant ‘was trying, however weakly and ineffectively,’ to prevent any grave risk that might result from his conduct.”  Thus, he could not be found to have been totally indifferent to the health of the victim, a necessary finding for “depraved indifference.”  Furthermore, the court found that the doctor’s testimony, which was not contradicted by any evidence from the prosecution, “failed to establish that defendant’s reckless conduct posed a grave or ‘very substantial’ risk of death to the victim.”

This opinion stands in stark contrast to rulings from other jurisdictions that have upheld lengthy prison sentences on similar facts, usually citing outdated medical sources about the mortality prognosis from HIV infection.  Those opinions tend to come from jurisdictions whose legislatures reacted to the AIDS epidemic by passing specific laws criminalizing knowing exposure to HIV and mandating severe sentences.  New York, by contrast, has dealt with HIV transmission under its general penal code provisions, leaving the courts with flexibility to take account of new medical information and the facts of individual cases.  If Williams is a first offende, he may end up not having to serve any prison time in this case, although the prosecutor’s pursuit of a felony charge on appeal doesn’t suggest that a lenient plea-bargain is in the offing.