Saying “I’m Transgendered” Resulted in a Courage Award for Caitlin Jenner

With the award given Caitlin Jenner on 7/15/15 and her speech, many people are now talking about transgendered citizens. Transgendered generally means that a person has the physical anatomy of one gender but feels more like the other gender and wants to become the other gender. The “process” involves hormone therapy, counseling, and surgery. The transition involves the entire family and network of friends who begin referring to the transgendered person by another pronoun (e.g., “he” instead of “she”) and by another name (e.g. Caitlin instead of Bruce).

In Michigan law, there is little to no reference to transgendered people, who are also called “transsexual.” In today’s world, the community of non-straight people includes transgendered people. The general word “gay” is now replaced with “LGBT”—which stands for lesbian, gay, bi-sexual, and transgendered.

The federal civil rights law and Michigan’s civil rights law do not protect people from discrimination based on their sexual identity. To date, those laws protect people from discrimination based on religion, marital status, height, weight, gender (male vs. female), ethnicity, age, and race. As a result, members of the LGBT community are often victims of astonishing discrimination.

One of the few cases in Michigan that even mentions transgenderd people is Doe v Borromeo, 2012 WL 4215032. The plaintiff in this case called herself “Doe” to hide her identity. In some cases where a person wants to sue but remain anonymous, or where the identity of a defendant is not yet known, the court will permit a pleading to be filed under the name of “Doe”. In the Borromeo case, these were the facts:

This case arises from an alleged sexual assault under the guise of a medical examination that occurred on April 15, 2007. According to plaintiff, she was admitted to WBH with “vaccine paralysis,” which affected her ability to move her arms and speak. While she was in an examination room, Borromeo allegedly entered her room and “did willfully, harmfully and offensively touch the Plaintiffs [sic] bodily parts in such a manner as was improper, unlawful and resulted in an assault upon the Plaintiff, and in such a manner that did not constitute medical care and treatment.” Specifically, plaintiff alleges that Borromeo “with his stethoscope slid his hand underneath the Plaintiff's gown, then without the stethoscope grabbed the Plaintiff's breasts, and continued to do so. Defendant then placed his hands on the Plaintiff's lower anatomy and sexually assaulted her without medical basis.” Borromeo was apparently in plaintiff's room because he was asked to fill in for plaintiff's primary care doctor, who was unable to work that day. Plaintiff claims that this incident has had a dramatic negative impact on her life, both physically and psychologically.

On April 10, 2009, in Docket No. 305162, plaintiff filed her first action against WBH and Borromeo; plaintiff filed her first amended complaint on May 14, 2009. On July 1, 2009, in Docket No. 305162, the lower court issued an ex parte protective order, instructing 1) that the parties refrain from using plaintiff's legal name in any subsequent court filing; 2) that any filing which already used plaintiff's legal name be sealed; and 3) that all depositions, affidavits, and other discovery methods not use plaintiff's legal name.

On July 2, 2009, in Docket No. 305162, plaintiff filed her second amended complaint, which alleged four counts: assault and battery, intentional infliction of emotional distress, vicarious liability, and negligent infliction of emotional distress. Specifically with regard to WBH, plaintiff alleged that WBH was directly and vicariously liable for Borromeo's conduct.

Because the facts were embarrassing to the alleged victim, the plaintiff called herself “Doe” when she filed her lawsuit. The Court of Appeals, however, held that there was no basis in this case for that anonynimity. In deciding that issue, the Court was required to do a “balancing test”:

Among the factors to be considered in the balancing process are whether:

(1) prosecution of the suit compels the plaintiff to disclose information of a private nature,

(2) the plaintiff seeks to challenge governmental or private activity, and

(3) the plaintiff is compelled to admit an intention to engage in illegal conduct.[34]

The Court conducted a survey of decisions of courts of other jurisdictions, and concluded:

The common thread running through these cases is the presence of some social stigma or the threat of physical harm to the plaintiffs attaching to disclosure of their identities to the public record. However, the cases make it clear that the decision whether to permit the use of fictitious names is one that is left to the discretion of the trial court.

The court identified abortion, religion, illegitimate or abandoned children subject to welfare proceedings, birth control, homosexuality, transsexuality, mental illness, and personal safety as the types of cases where other courts had found it appropriate to grant a party pseudonymous status.

Emphasis supplied. Certainly, no one anticipated in 2012 when this case was decided that Caitlin Jenner would give a speech on a major network in prime time about her transsexuality. What is clear from the decision in the Borromeo case, however, is that the court considered being transgendered to be shameful enough that the identity of the person could be protected in an appropriate case.

Much, however, has changed in the past few years. The former daughter of Sonny and Cher (“Chastity”) is transgendered, and he is now known as “Chaz.” The United States Supreme Court ruled on June 26, 2015 that same sex partners can marry. Ellen Degeneres is open about the fact that she is a lesbian, and Anderson Cooper just announced that he is gay. There are many other people among us who are bi-sexual.

Caitlin Jenner talked about a life that can feel like a lie. She talked about the suicides we hear about and the bullying that happens to people within the LGBT community. Caitlin tried to give this issue a “face,” and that was one of courage. In fact, Caitlin Jenner was on stage to receive the Arthur Ashe Courage Award. We all have much to think about, and Caitlin Jenner did not want to be “anonymous.”