Doe v. Pennsylvania Department of Corrections

          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 ...