EVAN MINTON, Plaintiff and Appellant, v. DIGNITY HEALTH, Defendant and Respondent.
A153662
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 9/17/19
CERTIFIED FOR PUBLICATION; (City & County of San Francisco Super. Ct. No. 17-558259)
Factual and Procedural Background
Minton filed a verified complaint alleging a cause of action for violation of
The complaint alleges that gender dysphoria is a serious medical condition codified in the Diagnostic and Statistical Manual of Mental Disorders. “The medical diagnosis for the feeling of incongruence between one‘s gender identity and one‘s sex assigned at birth, and the resulting distress caused by that incongruence, is ‘gender dysphoria.‘” The “widely accepted standards of care for treating gender dysphoria” include “medical steps to affirm one‘s gender identity and help an individual transition from living as one gender to another.” Transgender men often decide to undergo hysterectomy as a gender-affirming surgical treatment for gender dysphoria and “[a]ccording to every major medical organization and the overwhelming consensus among medical experts, treatments for gender dysphoria, including surgical procedures such as hysterectomy, are effective and safe.”
Ivie suggested that Dr. Dawson could get emergency admitting privileges at Methodist Hospital, a non-Catholic Dignity Health hospital about 30 minutes from Mercy. Ultimately, Dr. Dawson was able to secure emergency surgical privileges and performed Minton‘s hysterectomy at Methodist Hospital on Friday, September 2.
The complaint concludes, “Defendant prevented Dr. Dawson from performing Mr Minton‘s hysterectomy to treat his diagnosis of gender dysphoria, a medical condition unique to individuals whose gender identity does not conform to the sex they were assigned at birth. [¶] Defendant does not prohibit physicians at its hospitals from treating other diagnoses with hysterectomy. [¶] By preventing Dr. Dawson from performing Mr. Minton‘s hysterectomy to treat gender dysphoria, defendant discriminated against Mr. Minton on the basis of his gender identity.”
Dignity Health filed a demurrer to the complaint on the ground that Minton failed to allege a violation of
The demurrer was sustained with leave to amend. The court found the complaint “alleged insufficient facts to show that Dignity Health‘s conduct in permitting Mr. Minton to receive a hysterectomy at another of its hospitals violated Dignity Health‘s obligation per
Minton then filed an amended complaint. The amended complaint alleges that gender dysphoria is “a medical condition unique to individuals whose gender identify does not conform to the sex they were assigned at birth and thus usually experienced by transgender people.” More significantly, the amended complaint also clarifies the circumstances under which Minton alleges he was first denied treatment at Mercy and three days later received the hysterectomy at another Dignity Health hospital.3 He alleges that defendant suggested the alternative hospital only after Minton and Dr. Dawson exerted pressure on Dignity Health through the media and political connections. The pleading alleges that on the morning of August 29, after receiving notice that Minton‘s surgery had been cancelled, Dr. Dawson made numerous phones calls, including one to Ivie who said that she (Dawson) would never be allowed to perform the hysterectomy on Minton at Mercy. That afternoon, she and Minton contacted local media agencies who aired his story. In response, Dignity Health issued a statement regarding the Directives which stated, “When a service is not offered the patient‘s physician makes arrangements for the care of his/her patient at a facility that does provide the needed service.” (Italics omitted.) That afternoon, Minton‘s attorney also contacted the hospital about the cancellation of the surgery. During this flurry of advocacy on Minton‘s behalf, Dr. Dawson and others discussed with Ivie the possibility that Dr. Dawson could perform Minton‘s surgery at the alternative hospital. However, it was not immediately clear that this was a viable option because Dr. Dawson did not have surgical privileges at the other hospital, it
Dignity Health filed a demurrer to the amended complaint on the grounds previously asserted with respect to the original complaint. After briefing and argument, the demurrer was sustained without leave to amend. The court explained, “As was true with Mr. Minton‘s complaint, the first amended complaint fails to allege sufficient facts to show that Dignity Health‘s conduct in permitting Mr. Minton to receive a hysterectomy at one of its hospitals other than the hospital where Mr. Minton desired to receive that procedure violated Dignity Health‘s obligation per
A judgment of dismissal was entered and Minton timely filed a notice of appeal. With the court‘s permission, amicus curiae briefs have been filed on Minton‘s behalf by the National Center for Lesbian Rights and the California Medical Association and in support of Dignity Health by the Catholic Health Association of the United States, the Alliance of Catholic Health Care, and the Catholic Medical Association.
Discussion
I. Standard of Review
“On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, the reviewing court assumes the truth of all facts properly pleaded by the plaintiff. [Citations.] We also accept as true all facts that may be implied or reasonably inferred from those expressly alleged. [Citation.] We do not assume the truth of ’ ” ‘contentions, deductions or conclusions of fact or law.’ ” ’ [Citations.] We review the trial court‘s action de novo and exercise our own independent judgment whether a cause of action has been stated under any legal theory. [Citation.] We review the
II. The Unruh Act applies to Minton‘s intentional discrimination claim.
” ’ [A] plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act. A disparate impact analysis or test does not apply to Unruh Act claims.’ ” (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 854.)
Dignity Health contends that Minton‘s pleading fails to allege a claim for intentional discrimination. It suggests that, at most, Minton has alleged a claim for disparate impact based on Mercy‘s adherence to the facially neutral Directives. (See Turner v. Association of American Medical Colleges (2008) 167 Cal.App.4th 1401, 1408 [“A policy that is neutral on its face is not actionable under the Unruh Act, even when it has a disproportionate impact on a protected class.“];
In support of its demurrer, Dignity Health cites Directive No. 29 which states, “All persons served by Catholic health care have the right and duty to protect and preserve their bodily and functional integrity. The functional integrity of the person may be sacrificed to maintain the health or life of the person when no other morally permissible means is available.” (Endnote omitted.) Directive No. 53 states, “Direct sterilization of either men or women, whether permanent or temporary, is not permitted in a Catholic health care institution. Procedures that induce sterility are permitted when their direct effect is the cure or alleviation of a present and serious pathology and a simpler treatment is not available.”
While Dignity Health may be able to assert reliance on the Directives as a defense to Minton‘s claim, the matter is not suitable for resolution by demurrer. (See North Coast, supra, 44 Cal.4th at p. 1161 [defendant physicians can “offer evidence at trial that their religious objections were to participating in the medical insemination of an unmarried woman and were not based on plaintiff‘s sexual orientation, as her complaint alleged.“].)The allegations of the complaint are that Dignity Health refused to allow Dr. Dawson to perform the hysterectomy at Mercy hospital because of Minton‘s gender identity. The pleading alleges that Mercy allows doctors to
Dignity Health‘s contention that its action was motivated by adherence to neutral Directives and not at all by Minton‘s medical condition or sexual orientation, contrary to the allegations in the complaint, is not susceptible to resolution by demurrer.
III. The pleading alleges that Dignity Health denied Minton “full and equal” access to medical care.
The trial court concluded that Minton‘s claim is precluded by dicta in the California Supreme Court‘s decision in North Coast, supra, 44 Cal.4th 1145. In North Coast, a patient sued a medical group and two of its employee physicians alleging their refusal to perform artificial insemination on her violated the Unruh Act. (Id. at pp. 1152-1153.) The patient was a lesbian and defendant doctors, citing their religious beliefs, refused to perform artificial insemination on the patient because of her sexual orientation. The question before the court was whether the physicians’ First Amendment right to free exercise of religion exempted them from conforming their conduct to the Unruh Act‘s requirement to provide ” ‘full and equal accommodations, advantages, facilities, privileges, or services.’ ” (Id. at p. 1154.) The court held that the California Constitution‘s guarantee of free exercise of religion does not exempt physicians from conforming their conduct to the Unruh Act‘s antidiscrimination requirements even if compliance substantially burdens their religious beliefs. (Id. at p. 1158.) Applying a strict scrutiny analysis, the court explained that the Unruh Act “furthers California‘s compelling interest in ensuring full and equal access to medical treatment irrespective of sexual orientation, and there are no less restrictive means for the state to achieve that goal.” (Ibid.) The court observed, however, “To avoid any conflict between their religious beliefs and the state Unruh Civil Rights Act‘s antidiscrimination provisions, defendant physicians can simply refuse to perform the . . . medical procedure at issue here for any
Based on this explanation in North Coast, the trial court here concluded: “Mr. Minton has not alleged, nor does it appear that it is reasonably possible for him to allege, that his receiving the procedure he desired from the physician he selected to perform that procedure three days later than he had planned and at a different hospital than he desired deprived him of full and equal access to the procedure, even assuming . . . that Dignity Health‘s refusal to have the procedure performed at [Mercy] was substantially motivated by Mr. Minton‘s gender identity.” (Italics added.)
The trial court‘s fundamental error is that it misconstrues Minton‘s pleading. Minton does not allege, nor does he contend on appeal, that providing him with access to alternative hospital facilities violated the Unruh Act. He alleges that the Act was violated on August 29, 2016, when defendant cancelled the scheduled procedure at Mercy and Mercy‘s president told Dr. Dawson that she would never be allowed to perform Minton‘s hysterectomy at Mercy. According to the amended complaint, that refusal was not accompanied by advice that the procedure could instead be performed at a different nearby Dignity Health hospital. At that point in time, according to the amended complaint, Minton was denied full and equal access to health care treatment, a violation of the Unruh Act.
Allegedly in response to pressures brought to bear on defendant, within a relatively short period of time Ivie proposed use of the facilities at the alternative hospital. In doing so, and in making those alternate facilities available three days later, defendant undoubtedly substantially reduced the impact of the initial denial of access to its facilities and mitigated the damages to which Minton otherwise would have been entitled. However, the steps that were taken to rectify the denial in response to pressure from Minton and from the media did not undo the fact that the initial withholding of facilities was absolute, unqualified by an explanation that equivalent facilities would be provided at an alternative location.
To be clear, we do not question the observation in North Coast that “[t]o avoid any conflict between their religious beliefs and the state Unruh Civil Rights Act‘s antidiscrimination provisions, defendant physicians . . . can avoid such a conflict by ensuring that every patient requiring [a procedure]
Dignity Health argues that “[e]ven assuming Minton had alleged an Unruh Act violation, his claim still would be barred by the guarantees of religious freedom and freedom of expression enshrined in the California and federal Constitutions. (
As explained above, upholding Minton‘s claim does not compel Dignity Health to violate its religious principles if it can provide all persons with full and equal medical care at comparable facilities not subject to the same religious restrictions. If it cannot and to the extent there is any compulsion, Dignity Health‘s arguments were soundly rejected in North Coast, supra, 44 Cal.4th 1145. The Supreme Court, applying a strict scrutiny analysis, held that any burden the Unruh Act places on the exercise of religion is justified by California‘s compelling interest in ensuring full and equal access to medical treatment for all its residents, and that there are no less restrictive means available for the state to achieve that goal. (Id. at p. 1158; see also Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018) __ U.S. __, __ [138 S.Ct. 1719, 1727] [“While . . . religious and philosophical objections are protected [by the First Amendment], it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally
Disposition
The judgment and the order sustaining the demurrer to the amended complaint are reversed. The trial court is directed to enter a new and different order overruling the demurrer. Plaintiff shall recover his costs on appeal.
POLLAK, P. J.
WE CONCUR:
TUCHER, J.
BROWN, J.
Trial court: San Francisco County Superior Court
Trial judge: Honorable Harold E. Kahn
Counsel for Appellant: COVINGTON & BURLING LLP, Christin Haskett and Lindsey Barnhart
ACLU FOUNDATION OF NORTHERN CALIFORNIA, Elizabeth O. Gill and Christine P. Sun
ACLU FOUNDATION OF SOUTHERN CALIFORNIA, Amanda Goad and Melissa Goodman
AMERICAN CIVIL LIBERTIES FOUNDATION, Lindsey Kaley
Julie Wilensky and Asaf Orr for National Center For Lesbian Rights and twelve additional nonprofit organizations as amicus curiae on behalf of Plaintiff and Appellant.
DURIE TANGRI LLP, Benjamin B. Au, Laura E. Miller, Lauren E. Kapsky, Francisco J. Silva, Long X. Do and Lisa Matsubara for the California Medical Association on behalf of Plaintiff and Appellant.
Counsel for Respondent: MANATT, PHELPS & PHILLIPS, LLP, Barry S. Landsberg, Harvey L. Rochman, Joanna S. McCallum and Craig S. Rutenberg
David L. Shapiro
GREENE & ROBERTS LLP, Stephen J. Green, Jr., STRADLEY RONON STEVENS & YOUNG, LLP, Mark E. Chopko and Jennifer Gniady for The Catholic Health Association of the United States and Alliance of Catholic Health Care as amicus curiae on behalf of Defendant and Respondent.
A153662