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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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Steinman seemed angry, and held his face a few inches from [Rumble’s] face when he asked questions.” (Id.) In fact, Rumble claims that “Dr. Steinman’s manner was so hostile that [Rumble] felt as if the questions were an attempt to embarrass [Rumble] rather than to diagnose him.” (Id.) For instance, Dr. Steinman allegedly asked Plaintiff if he was “engaging in penetration,” and whether “he’d ever had sex with objects.” (See id.) CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 8 of 63 After questioning Rumble, Dr. Steinman proceeded with a physical examination of Plaintiff’s genitalia. Plaintiff informed Dr. Steinman that “he was in extreme pain,” and asked Dr. Steinman “to please be gentle.” (See id. 41.) “Dr. Steinman took a strip of gauze and [allegedly] wiped [Rumble’s] labia in a very rough manner.” (Id. 43.) In fact, Rumble alleges that he “felt like he was being stabbed,” because “[i]t seemed as if [Dr. Steinman] was pressing down as hard as he could.” (Id.) Dr. Steinman then allegedly “repeatedly jabbed at [Rumble’s] genitals with his fingers.” (Id.) Rumble began to cry from the pain of this exam. (See id.) When Dr. Steinman asked “[i]s this what this normally looks like?,” Plaintiff “responded that his labia were swollen to almost three times their normal size.” (Id. 44.) Dr. Steinman then allegedly stated that “he couldn’t tell what was going on because of the male hormones.” (See id.) Rumble takes prescription hormone medication. (Id. 42.) Throughout the exam, Dr. Steinman “repeated several times that he didn’t know what the male hormones [Rumble] was taking were doing to [Rumble’s] body,” nor did Dr. Steinman know “how much swelling was due to the hormones.” (Id.) Dr. Steinman proceeded by continuing to jab Plaintiff’s genitals. (Id. 45.) Rumble cried out from the pain, and when he could not bear the pain any longer he asked Dr. Steinman to stop the exam, twice. (See id.) However, “Dr. Steinman [allegedly] ignored him and did not stop, but continued to forcefully jab at [Rumble’s] genitals, causing [Rumble] more pain.” (Id.) Although Dr. Lehrman and the female nursing assistant/emergency room technician were in the exam room, they did not intervene or stop Dr. Steinman. (See id. 48.) CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 9 of 63 Rumble then asked his mother, “Mom, can you make him stop?” (Id. 46.) Jennifer Rumble responded by allegedly yelling “[s]top! He said that you needed to stop.

Didn’t you hear him?” (Id.) At this point, the female nursing assistant/emergency room technician left the room. (See id.) Dr. Steinman finally stopped jabbing Plaintiff’s genitals and Rumble asked whether Dr. Steinman had determined the problem. Dr.

Steinman allegedly stated in a tense and angry voice, “I can’t tell you because your mom made me stop the exam.” (See id. 47.) Without further explanation, Dr. Steinman then allegedly left the room. (See id.) Once both doctors had left Rumble’s exam room, Rumble waited in the room for two additional hours. (See id. 49.) Jennifer Rumble asked emergency room staff if they often made people wait in the emergency room for nearly seven hours, and the staff allegedly responded they did not. (See id. 50.) Rumble’s mother also asked whether she and her son could have something to eat. (See id.) Although the staff initially stated that they did not feed people who were in the emergency room, after acknowledging that the Rumbles had been waiting for nearly seven hours, the staff brought the Rumbles sandwiches. (See id.)

–  –  –

Finally, around 8 pm on June 23, 2014, Plaintiff was admitted to the hospital. (Id.

51.) Jennifer Rumble was later informed by a Fairview hospital doctor that her son “would have been septic within 12 to 24 hours [from] when [she] brought [her son] in[to the emergency room] and he could have died.” (Id. 59.) Because of the interaction with Dr. Steinman, Rumble was afraid of being left alone in the hospital. (Id. 51.) CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 10 of 63 Rumble’s mother shared his fear, as “[s]he did not know what might happen if she was not present.” (Id. 52.) Therefore, Rumble’s mother stayed in the hospital with her son for his entire stay, and she spent nights sleeping on a chair. (Id.) Rumble was in the hospital for six days. (Id. 62.) While he was a patient, he had his own private room. (Id. 54.) On a dry erase board on the wall across from the foot of Rumble’s bed, Fairview staff tracked the names of Rumble’s on-duty nursing staff, his reported pain levels, and the names and specialties of his treating physicians.

(See id.) One of Rumble’s treating physicians was Dr. Lehrman, the same doctor who was present during Rumble’s interaction with Dr. Steinman. (See id.) The dry erase board indicated that Dr. Lehrman is an “OB/GYN.” (See id.) Rumble alleges that he was “upset and embarrassed by Defendant Fairview’s disclosure on the dry erase board[,] that he was being treated by an ‘OB/GYN[,]’ to non-medical personnel such as dietary and housekeeping/environmental services and any personal guests to his room.” (See id.

55.) Accordingly, Rumble’s mother erased the “OB/GYN” notation with her finger after observing her son’s discomfort with the visible information. (See id.) Rumble alleges that this visible notation was unnecessary because “all medical professionals treating [Plaintiff] would have had access to the same information on his charts.” (Id.) In addition to Dr. Lehrman, Rumble was assigned an infectious disease doctor, Dr.

Stephen Obaid. (See id. 56.) Dr. Obaid examined Rumble around 7 am on June 24, 2013. (Id.) Dr. Obaid examined Plaintiff’s genital area while wearing gloves, then wiped his gloves on the blanket on Rumble’s bed, and proceeded to examine Rumble’s eyes and mouth using the same gloves. (See id.) Rumble “later developed sores on his face in the CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 11 of 63 places that Dr. Obaid had touched.” (Id.) In addition to the lack of sanitary or hygienic precautions taken by Dr. Obaid, Plaintiff alleges that he was mistreated by the nurses at Fairview. (See id. 57–58.) For instance, Rumble claims that “some of the nurses were hostile towards him because they seemed tense and avoided speaking to him when they came into his room.” (Id. 57.) Additionally, at the beginning of each nurse’s shift, the nurse would examine his genitals.

(Id.) Rumble asked one nurse why the nurses needed to conduct this exam, and the nurse responded that it was simply “completely necessary,” without elaborating further. (Id.) Rumble also asked this nurse if she knew what was wrong and she responded that “I don’t know because I don’t have any experience with this sort of thing.” (Id. 58.) Rumble believes that the nurse implied that she had no experience with transgender patients. (Id.) Although Rumble was initially treated with antibiotics when he was admitted to the hospital, he “did not appear to be getting any better.” (Id. 53.) Therefore, Rumble’s mother decided to complete her own research and she “searched the internet to get information about what might be wrong.” (Id. 60.) As a result of her research, she asked Dr. Obaid if her son may have a sexually-transmitted infection. (Id.) After this suggestion, Dr. Obaid swabbed Rumble’s genitals for testing, and informed Rumble’s mother that “it would be a week before they had the lab results.” (Id. 61.) Nonetheless, Fairview staff began to treat Rumble with a different medication and his medical condition began to improve. (Id.) After two days on the new medicine, Rumble asked to be discharged. (Id. 62.) Although Rumble believed that he could have improved more CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 12 of 63 from staying longer in the hospital, “he did not feel safe at the hospital and preferred to leave.” (Id.) Rumble was released from the hospital on Friday, June 28, 2013. (Id.)

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A few weeks later, Rumble received a bill from Emergency Physicians, the group that employs Dr. Steinman. (Id. 63.) The bill was in regards to his emergency room visit at Fairview Southdale Hospital. (Id.) “The bill indicated [that] no insurance payments were pending and [Rumble] owed the full amount. In the billing description for the time he had spent at Fairview Southdale Hospital, it stated, ‘THE DIAGNOSIS IS INCONSISTENT WITH THE PATIENT’S GENDER.’” (Id.) In contrast to the statement on this bill, Plaintiff alleges that his ultimate diagnoses were conditions that can, and do, affect people of any sex or gender. 2 (Id.) As a result of his experience with Defendants, Plaintiff fears doctors and “refuses to visit a hospital or doctor’s office alone.” (Id. 64.) Additionally, Rumble claims that he will never go to Fairview Southdale Hospital again, “even in an emergency” although it is the nearest hospital to his home. (Id. 65.) The Court also notes that on December 12, 2013, Plaintiff filed a complaint of discrimination with the Office for Civil Rights (“OCR”) in the Department of Health and Human Services alleging that Defendants violated his rights under Section 1557 of the ACA. (Id. 67.) “The OCR is responsible for ensuring compliance with Section 1557.

Plaintiff does not allege that he incurred expenses because of the insurance company’s initial denial of coverage. (See generally Compl. [Doc. No. 1]; Def.

Emergency Physicians’ Reply at 2 [Doc. No. 29].) Rather, Plaintiff only argues that the language further substantiates his federal and state law discrimination claims.

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 13 of 63 Region V of [the] OCR is responsible for investigating and remedying violations of Section 1557 that occur in Minnesota, where Fairview Southdale Hospital is located.” (Id.) The OCR’s investigation of this matter is allegedly ongoing.

–  –  –

Plaintiff’s Complaint states two counts against Defendants. In Count I, Plaintiff alleges that Defendants discriminated against him on the basis of sex, in violation of

Section 1557 of the ACA. 3 (See id. 69–76.) According to Section 1557:

Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section Section 1557 provides Plaintiff with a private right of action to sue Defendants.

The Court reaches this conclusion because the four civil rights statutes that are referenced and incorporated into Section 1557 permit private rights of action. See Gonzaga Univ. v.

Doe, 536 U.S. 273, 283–84 (2002) (holding that “Title VI... and Title IX... create individual rights because those statutes are phrased ‘with an unmistakable focus on the benefited class’”) (emphasis added); Barnes v. Gorman, 536 U.S. 181, 185 (2002) (finding that section 504 of the Rehabilitation Act is “enforceable through private causes of action” because the statutory language of section 504 mirrors Title VI); 42 U.S.C. § 6104(e)(1) (the Age Discrimination Act of 1975 states that “any interested person [may] bring [an action] in any United States district court for the district in which the defendant is found or transacts business to enjoin a violation of this Act... [and] [s]uch interested person may elect, by a demand for such relief in his complaint, to recover reasonable attorney’s fees, in which case the court shall award the costs of suit, including a reasonable attorney's fee, to the prevailing plaintiff.”). Because Section 1557 states that the enforcement mechanisms available under those four statutes apply to violations of Section 1557, Section 1557 necessarily also permits private causes of action.

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 14 of 63 504, or such Age Discrimination Act shall apply for purposes of violations of this subsection.

See 42 U.S.C. § 18116 (emphasis added). Accordingly, Defendants, who both allegedly received federal financial assistance, may not discriminate against Plaintiff on the basis of “sex,” as Title IX prohibits discrimination on this “ground.” See id.

When analyzing Title IX, courts have interpreted the term “sex” to include “individuals who are perceived as not conforming to gender stereotypes and expectations.” (See Compl. 72 (citing Kastl v. Maricopa Cnty. Community College Dist., No. 02-cv-1531 (PHX/SRB), 2004 WL 2008954, at *2 (D. Ariz. June 3, 2004) (stating that “[i]t is well settled that Title VII’s prohibition on sex discrimination encompasses discrimination against an individual for failure to conform to sex stereotypes.”), and Miles v. New York University, 979 F. Supp. 248, 250 n.4 (S.D.N.Y.

1997) (explaining that “the Title IX term ‘on the basis of sex’ is interpreted in the same manner as similar language in Title VII”)) [Doc. No.1].) Furthermore, Leon Rodriguez, the Director of the OCR, stated in an agency opinion letter that Section 1557 of the ACA “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” (See Barrett Wiik Decl., Ex. C [Doc.

No. 26-1].) Accordingly, Plaintiff alleges that, in direct violation of Section 1557, “Defendants perpetrated discrimination[, based upon Rumble’s gender identity or transgender status,] with malice, deliberate disregard for, or deliberate reckless indifference to Plaintiff’s rights.” (Compl. 75 [Doc. No. 1].) In Count II, Plaintiff alleges that Defendants’ conduct violated the MHRA, Minn.

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