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«CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 1 of 63 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Jakob Tiarnan Rumble, Case No. ...»

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CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 1 of 63



Jakob Tiarnan Rumble, Case No. 14-cv-2037 (SRN/FLN)





Fairview Health Services d/b/a Fairview Southdale Hospital, and Emergency Physicians, P.A., Defendants.

Christy L. Hall, Jill R. Gaulding, and Lisa C. Stratton, Gender Justice, Minnesota Women’s Building, 550 Rice Street, Suite 105, St. Paul, MN 55103; Katherine S. Barrett Wiik, Robins Kaplan LLP, 800 LaSalle Avenue, Suite 2800, Minneapolis, MN 55402for Plaintiff.

Jessica M. Marsh, Sara Gullickson McGrane, and Scott D. Blake, Felhaber Larson, 220 South 6th Street, Suite 2200, Minneapolis, MN 55402-4504, for Defendant Fairview Health Services d/b/a Fairview Southdale Hospital.

Chad W. Strathman, Emergency Physicians P.A., 5435 Feltl Road, Minnetonka, MN 55343, for Defendant Emergency Physicians, P.A.

SUSAN RICHARD NELSON, United States District Judge I. INTRODUCTION This matter is before the Court on (1) Defendant Emergency Physicians, P.A.’s Motion to Dismiss [Doc. No. 11]; and (2) Defendant Fairview Health Services’ Motion to Dismiss [Doc. No. 18]. For the reasons set forth below, the Court denies both motions.

II. BACKGROUND Plaintiff Jakob Tiarnan Rumble (“Rumble” or “Plaintiff”) filed suit against CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 2 of 63 Defendant Fairview Health Services, d/b/a Fairview Southdale Hospital (“Fairview”), and Emergency Physicians, P.A. (“Emergency Physicians”), alleging that the treatment he received at Fairview from June 23 to June 28, 2013, constitutes discrimination in violation of Section 1557 of the Affordable Care Act (“ACA”), 42 U.S.C. § 18116, and the Minnesota Human Rights Act (“MHRA”), Minn. Stat. § 363A.11. (See generally Compl. [Doc. No. 1].) Specifically, Rumble alleges that “he received worse care [from both Defendants]... because of his status as a transgender man.” (See id. 3.) Rumble resides in Hennepin County, Minnesota. (Id. 4.) He was eighteen years old when he experienced the alleged discrimination by Defendants. (See Pl.’s Mem. at 10 [Doc. No. 25].) Defendant Fairview is a “Minnesota-based health care organization receiving federal and state financial assistance such as credits, subsidies, or contracts of insurance.” (Id. 6.) At all times relevant, Fairview owned and operated Fairview Southdale Hospital, which is located at 6401 France Avenue South, Edina, Minnesota 55435. (Id. 5.)Plaintiff alleges that Fairview “employed the services of doctors, nurses, and other healthcare professional and non-professional health care providers, including the nurses and other health care providers who cared for Jakob Rumble in June 2013, and held itself out and warranted itself to the public as competent, careful, and experienced in the care and treatment of patients.” (Id. 7.) Like Fairview, Defendant Emergency Physicians is also a “Minnesota-based healthcare organization receiving federal and state financial assistance such as credits, subsidies, or contracts of insurance.” (Id. 10.) Emergency Physicians employs the CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 3 of 63 emergency room physicians who staff Fairview Southdale Hospital. (Id. 9.) Plaintiff alleges that Randall Steinman, M.D. is one such emergency room physician who is employed by Defendant Emergency Physicians. (Id. 12.)

–  –  –

Given the nature of this case, the Court provides an overview of the relevant terminology before detailing Plaintiff’s claims. Rumble self-identifies as a “female-tomale transgender man.” (Id. 4.) Transgender is “[a]n umbrella term that may be used to describe people whose gender expression does not conform to cultural norms and/or whose gender identity is different from their sex assigned at birth. Transgender is a selfidentity, and some gender nonconforming people do not identify with this term.” See Trans Bodies, Trans Selves: A Resource for the Transgender Community 620 (Laura Erickson-Schroth, ed. 2014). Although Rumble was “labeled female at birth and given a female birth name,” he “identifies as male.” (Compl. 25 [Doc. No. 1].) Recently, courts have broadly characterized an individual’s transgender status as part of that individual’s “sex” or “gender” identity. See, e.g., Smith v. City of Salem, Ohio, 378 F.3d 566, 572–73 (6th Cir. 2004) (holding that plaintiff with gender identity disorder sufficiently stated constitutional and Title VII sex discrimination claims based on his allegations that he was discriminated against because of his gender nonconforming behavior and appearance); Radtke v. Miscellaneous Drivers & Helpers Union Local No. 638 Health, Welfare, Eye & Dental Fund, 867 F. Supp. 2d 1023, 1032 (D.

Minn. 2012) (explaining that “the ‘narrow view’ of the term ‘sex’ in Title VII” in Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982), “‘has been CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 4 of 63 eviscerated by Price Waterhouse.’”) (quoting Smith, 378 F.3d at 573).

This recent development is a result of the United States Supreme Court’s ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded on other grounds by statute as stated in Burrage v. U.S., 134 S. Ct. 881 (2014). In Price Waterhouse, the Supreme Court held that Title VII’s prohibition against discrimination because of sex includes discrimination based on gender stereotyping. See 490 U.S. at 250–52. Because the term “transgender” describes people whose gender expression differs from their assigned sex at birth, discrimination based on an individual’s transgender status constitutes discrimination based on gender stereotyping. Therefore, Plaintiff’s transgender status is necessarily part of his “sex” or “gender” identity.

However, an individual’s transgender status in no way indicates that person’s

sexual orientation. See American Psychological Association, Identification of Terms:

Sex, Gender, Gender Identity, Sexual Orientation, available online http://www.apa.org/pi/lgbt/resources/sexuality-definitions.pdf. Although this principle is factually correct, the State of Minnesota defines “sexual orientation” as including “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.” See Minn. Stat. § 363A.03, subd. 44.

Therefore, solely for purposes of the Court’s discussion of Plaintiff’s Minnesota state law discrimination claim, the Court considers Plaintiff’s gender identity as part of his “sexual orientation.” B. Plaintiff’s Medical Condition Before Going to Fairview Hospital Rumble alleges that “[d]uring the week of June 16 to June 22, 2013, [he] saw his CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 5 of 63 primary care provider with a complaint that his reproductive organs were inflamed and causing him extreme pain.” (Compl. 26 [Doc. No. 1].) Plaintiff has a “uterus, vagina, cervix, and labia.” 1 (See id. 42.) Rumble’s primary care physician prescribed a “7-day course of antibiotic treatment.” (Id. 26.) However, Rumble’s pain allegedly increased during the course of his antibiotic treatment. (See id. 27.) In fact, Rumble alleges that he “could hardly walk because of the pain[, and] [w]hen he urinated, he had to grab something to brace himself or bit down on a towel to endure the pain.” (Id.) On June 23, 2013, when the pain had reached this severity, Plaintiff’s mother, Jennifer Rumble, took Plaintiff’s temperature and determined that he had a one hundred and four degree fever. (Id.) As a medical professional, Jennifer Rumble knew that “800 mg of ibuprofen” is the “highest safe dosage for an adult.” (Id. 37, 27.) To treat her son’s pain, Jennifer gave Plaintiff 800 mg of ibuprofen. (Id. 27.) Plaintiff alleges that after he took the ibuprofen, he and his mother went to the emergency room at Fairview Southdale Hospital, which “was the hospital closest to their home.” (Id. 28.)

–  –  –

Plaintiff arrived at Fairview at approximately 1 pm on June 23, 2013. (Id.) When checking-in at the front desk, Rumble handed the front desk clerk his driver’s permit.

(Id. 29.) At the time, Rumble’s driver’s permit “incorrectly identified [him] as female.” (Id.) The clerk allegedly told Rumble that he could not find Rumble in the computer Generally, it is offensive and inappropriate to ask anyone, including a transgender individual, whether their genitals correspond with their self-proclaimed gender identity.

See Erickson-Schroth, supra, at 265. However, as this case pertains to the medical care that Plaintiff received to treat his genital pain, the Court engages in a discussion about Plaintiff’s genitalia.

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 6 of 63 system, and Rumble responded by telling the clerk his birth name. (See id.) The Fairview clerk told Rumble that Fairview has “female on file,” and subsequently gave Plaintiff a wristband labeled with an “F.” (See id. 30.) Plaintiff claims that he was given this “F” wristband even though he told the clerk that he identifies as male. (See Pl.’s Mem. at 1 [Doc. No. 25].) Although Plaintiff’s Complaint does not expressly state that Rumble told the clerk that he identifies as male, the Court reads Plaintiff’s Complaint as alleging that Rumble communicated his gender identity when he answered the clerk’s “preliminary questions.” (See Compl. 29 [Doc.

No. 1].) Rumble further alleges that during this exchange with the Fairview clerk, the clerk “left the front desk to speak to [another] person and held a folder in front of his face while whispering to this person.” (See id. 31.) Rumble believes that these two individuals were “discussing his gender.” (Id.) The clerk then took Rumble to an intake nurse in an examining room. (See id. 32.) Rumble allegedly registered a temperature of nearly one hundred degrees, “described the severity of his pain” to the intake nurse, and also told the intake nurse about his prior one hundred and four degree fever. (See id. 32–33.) After Plaintiff’s meeting with the intake nurse, Rumble and his mother were transferred to another room, where they waited to be seen by a doctor for hours. (See id.

35.) Rumble alleges that he remained in “severe pain” while he waited in this room.

(See id.) Although Plaintiff and his mother both tried to call a nurse using the call button in the room, allegedly, no one responded to the call. (See id.) In order to gain the attention of a medical professional in the hospital, Plaintiff claims that his mother would CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 7 of 63 “leave the room and search for emergency room staff.” (Id. 36.) Rumble’s mother told staff members that her son was in severe pain and asked for him to receive pain medication. (See id. 35.) Emergency room staff allegedly responded by stating that “they would need to ask a doctor about [administering or obtaining pain medication for Rumble].” (See id.) Finally, “[a]fter several hours,” Fairview staff gave Plaintiff some pain medication. (Id. 36.) Plaintiff and his mother believe that “people with less urgent medical needs were treated much more quickly than [Rumble] was treated.” (Id. 37.)

–  –  –

Dr. Randall Steinman finally came to Rumble’s room four and a half to five hours after Rumble initially arrived at the emergency room. (See id. 38.) Dr. Steinman is employed by Defendant Emergency Physicians. (See Compl. 12 [Doc. No. 1].) Dr.

Steinman was accompanied by a female nursing assistant/emergency room technician, and Dr. Karee Lehrman, an obstetrician-gynecologist. (Id. 38.) Dr. Steinman allegedly asked Rumble in a “hostile and aggressive manner,” “[w]ho are you having sex with?” (Id. 39.) When Rumble asked Dr. Steinman “what he meant by that [question],” Dr.

Steinman asked, “[m]en, women, or both?” (See id. 40.) Rumble alleges that “Dr.

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