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Defense Digest

Jane Doe: Navigating Gender Identity and Law

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

by Carly P. Edman

Key Points:

  • To proceed anonymously in a court proceeding, a plaintiff must show a reasonable fear of severe harm.
  • Under the principle that open and transparent proceedings are imperative to equitable outcomes, citizens have a right to know who is using their courts and defendants have a right to confront their accusers.
  • With regard to transgender people specifically, courts in the Third Circuit have allowed anonymity due to the private and intimate nature of being transgender as well as the widespread discrimination, harassment and violence faced by these individuals.

The legal profession has not been exempt from the increasingly debated topic of gender identity taking place in the United States. A recent 2021 case involving a transgender individual in the District Court for the Eastern District of Pennsylvania, Doe v. Genesis HealthCare, 535 F. Supp. 3d 335, 337 (E.D. Pa. 2021), demonstrates that courts in the Third Circuit recognize the importance of preserving the anonymity of transgender people in order to protect them from scrutiny or threats.

The plaintiff in Doe, a transgender woman, brought discrimination claims on the basis of her sex/gender identity and disability—gender dysphoria—against her former employer. The plaintiff began working as a certified nursing assistant for the defendants in February of 2019. She alleged that during her employment she was repeatedly discriminated against, harassed, and ultimately terminated because of her gender identity. Specifically, the plaintiff alleged her supervisors would misgender her by referring to her with incorrect pronouns and telling patients to do so. The plaintiff sought to proceed in her employment discrimination lawsuit under the pseudonym “Jane Doe.”

Under the Federal Rules of Civil Procedure, every pleading must have a caption with the court’s name, a title, file number and Rule 7(a) designation. The names of all parties must be listed in the caption of the complaint. Courts have explained that this level of specificity is necessary because of the long-held principle that “open and transparent proceedings are imperative to equitable outcomes.” However, courts have long recognized that the circumstances of a case, particularly when litigants may suffer extreme distress or danger from their participation in the lawsuit, may justify allowing a party to proceed under a pseudonym.

To proceed anonymously, a plaintiff must show a reasonable fear of severe harm. The courts then apply a balancing test to determine if the plaintiff’s reasonable fear of severe harm outweighs the public’s interest in open litigation. The Court of Appeals for the Third Circuit has set forth a non-exhaustive list of factors to consider. The factors favoring anonymity include:

(1) the extent to which the identity of the litigant has been kept confidential;

(2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases;

(3) the magnitude of the public interest in maintaining the confidentiality of the litigant’s identity;

(4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities;

(5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and

(6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives.

By contrast, three factors disfavor anonymity:

(1) the universal level of public interest in access to the identities of litigants;

(2) whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigants’ identities, beyond the public’s interest which is normally obtained; and

(3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated.

With regard to transgender people specifically, courts in the Third Circuit have allowed anonymity due to the private and intimate nature of being transgender as well as the widespread discrimination, harassment and violence faced by these individuals. Courts have balanced the need for a public trial with the need for anonymity by requiring plaintiffs to disclose their legal names for the limited purposes of conducting discovery and depositions.

In Doe, the court determined that the plaintiff demonstrated a reasonable fear of severe harm through her allegations of discrimination and significant harassment in her workplace based, in part, on her gender identity. The court opined that by using a pseudonym, the plaintiff also avoided additional threats or future harmful interactions with co-workers based on her transgender status of a kind similar to those that allegedly marked her employment with the defendants. This factor weighed in favor of anonymity because the potential harm to the plaintiff in that situation was that to reveal her identity presented a reasonable and justifiable fear.

Regarding the public interest factor, the plaintiff was not a public figure, which decreased the public’s interest in knowing the plaintiff’s identity. Forcing the plaintiff to reveal her identity risked placing her in danger, and if her identity were to be revealed, the plaintiff stated she would instead choose not to continue pursuing her claim. Because of this, the court determined it was also likely that other similarly situated litigants would be deterred from litigating these types of claims for the same reasons. Ultimately, the court concluded that the threat of verbal and possible physical harm risked deterring a significant number of potential litigants, which would lead to claims being unresolved. The Doe court, therefore, allowed the plaintiff to proceed under a pseudonym, confirming the recognized importance of protecting transgender individuals from the threats of harmful scrutiny caused by public disclosure. 

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In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

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