United States District Court, M.D. Pennsylvania
MEMORANDUM OPINION
Matthew W. Brann, United States District Judge
Plaintiff
is a transgender man bringing claims of discrimination on the
basis of his gender identity against his former employer, the
Pennsylvania Department of Corrections, as well as former
supervisors and coworkers in their individual capacities.
Plaintiff moves to proceed in this lawsuit under the
pseudonym “John Doe.”
Federal
Rule of Civil Procedure 10(a) typically requires complaints
to “include the names of all the parties, ” but
courts permit plaintiffs to proceed pseudonymously in limited
circumstances. The plaintiff must show “(1) a fear of
severe harm, and (2) that the fear of severe harm is
reasonable.”[1] “Examples of areas where courts have
allowed pseudonyms include cases involving ‘abortion,
birth control, transexuality[sic], mental illness,
welfare rights of illegitimate children, AIDS, and
homosexuality.'”[2] Courts of Appeals have “held that
a district court must balance the need for anonymity against
the general presumption that parties' identities are
public information and the risk of unfairness to the opposing
party.”[3]
The
United States Court of Appeals for the Third Circuit's
balancing test, originally laid out by the Eastern District
of Pennsylvania in Doe v Provident Life and
Accident Insurance Co[4] and adopted by the Court of Appeals in
Doe v Megless, [5] is unwieldy. It first instructs the
trial court to evaluate six factors in favor of anonymity:
(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 litigant's
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.[6]
Next,
the court is to weigh three additional factors disfavoring
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 litigant's 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.[7]
Despite
their length, we are told these factors are
nonexhaustive.[8]
While
appropriate in some circumstances, the flaws of multifactor
balancing tests are well documented-even well-crafted
multifactor tests can be difficult to apply, difficult to
predict, and invite needless litigation.[9] And the
Megless factors are not the crown jewels of
multifactor tests. To start, they are hopelessly imprecise
and redundant. For instance, the “universal level of
public interest in access to the identities of litigants,
” whether “there is a particularly strong
interest in knowing the litigant's identities, ”
“the magnitude of the public interest in maintaining
the confidentiality of the litigant's identity, ”
and whether “there is an atypically weak public
interest in knowing the litigant's identities” are
befuddlingly four separate factors. Surely, if there is a
“particularly strong interest” in knowing the
litigant's identities, then there is not an
“atypically weak” public interest, which itself
tells us something about the “magnitude” and
“universal level” of the public interest in
maintaining the litigant's confidentiality. These
inquiries, and others, meander and criss-cross into each
other's paths, to the extent they differ at all.
What's
more, the test does not provide what weight each enumerated
factor should be given, let alone how unenumerated
factors should tip the balance. One could hardly be blamed
for thinking they carry equal gravity. But some are clearly
central-Is there a substantial basis for fear?-while others
are secondary or infrequently implicated-Do the parties have
illegitimate motives in seeking or opposing pseudonymity? The
inclusion of so many factors flattens the seeming importance
of each.[10]
This
morass not only adds pages to briefs, it obscures the heart
of the inquiry: Does the Plaintiff risk severe harm by
proceeding under his or her real name? And, if so, is this
risk outweighed by a particularly strong public interest in
knowing the Plaintiff's identity?[11] The
Megless factors may assist by providing a compendium
of possible considerations, but this Court will focus on
these two questions.
Courts
have long recognized that the harms arising from disclosing a
person's transgender status are among those that make
protection by pseudonym appropriate.[12] As litigation around
transgender issues has increased, so too have more courts
permitted transgender plaintiffs to proceed
pseudonymously.[13] The Third Circuit in Megless
specifically listed it as an area where courts have allowed
pseudonyms.[14] As the United States Court of Appeals
for the Second Circuit has succinctly summarized,
“[T]he excruciatingly private and intimate nature of
transsexualism, for persons who wish to preserve privacy in
the matter, is really beyond debate.”[15]
The
Plaintiff in the case at bar faces these harms. Litigating
under his real name would out his transgender status to the
world. He avers that up to this day he has kept his
transgender status a closely guarded secret, disclosing it
only as necessary to comply with legal requirements.
Divulging it in connection with this complaint, which alleges
harassment arising from intensely personal subject matter,
poses a particularly high risk of severely compromising the
privacy the Plaintiff has labored to preserve.
The
public interest in knowing the Plaintiff's identity is
relatively low. He is not a public figure. I further note
that he makes a limited request, moving only to have his name
and address concealed. This means that, unlike a sealed
proceeding, the public will have access to everything else in
the proceedings as they would in a typical case. Given that,
the public interest in monitoring the courts will not be not
greatly harmed.[16] There is no risk of prejudice to the
opposing parties because the Plaintiff has agreed to fully
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