California Court of Appeals, First District, Fourth Division
Francisco County Superior Court No. 17-558259 Honorable
Harold E. Kahn Judge.
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.
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
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.
POLLAK, P. J.
Evan Minton appeals the dismissal of his complaint against
defendant Dignity Health, doing business as Mercy San Juan
Medical Center, after the court sustained Dignity
Health's demurrer without leave to amend. He contends the
court erred in concluding that his complaint, based on
Dignity Health's refusal to permit his doctor to perform
a hysterectomy on him at one of its hospitals because of his
sexual identity, fails to allege a violation of Civil
Code section 51, the Unruh Civil Rights Act
(Unruh Act). Although the parties and several amici curiae
regard the action as presenting a fundamental conflict
between plaintiff's right to full and equal access to
medical care and the hospital's right to observe its
religious principles, we conclude that the present appeal may
be resolved on narrower grounds. Without determining the
right of Dignity Health to provide its services in such cases
at alternative facilities, as it claims to have done here, we
agree that plaintiff's complaint alleges that Dignity
Health initially failed to do so and that its subsequent
rectification of its denial, while likely mitigating
plaintiff's damages, did not extinguish his cause of
action for discrimination in violation of the Unruh Act.
Accordingly, we shall reverse the judgment and remand for
and Procedural Background
filed a verified complaint alleging a cause of action for
violation of section 51, subdivision (b), which guarantees
all persons within the jurisdiction of the state “full
and equal accommodations, advantages, facilities, privileges,
or services in all business establishments of every kind
whatsoever.” His complaint alleged as follows: Dignity
Health is a tax-exempt nonprofit corporation that owns and
operates a large network of hospitals. Dignity Health does
business in Sacramento County as Mercy San Juan Medical
Center (Mercy). Minton is a transgender man diagnosed with
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.”
course of treatment for his diagnosis, Minton's
physician, Dr. Lindsey Dawson, scheduled a hysterectomy for
Minton at Mercy on August 30, 2016. The complaint alleges
that it was “the professional opinion of Mr.
Minton's hysterectomy surgeon and two mental health
professionals who counseled Mr. Minton” that the
“hysterectomy was medically necessary care to treat his
diagnosis for gender dysphoria.” On August 28, 2016,
Minton mentioned to a nurse at Mercy that he is transgender.
The following day, Mercy notified Dr. Dawson that the
procedure was cancelled. Mercy's president, Brian Ivie,
informed Dr. Dawson that she would “never” be
allowed to perform a hysterectomy on Minton at Mercy because
“it was scheduled as part of a course of treatment for
gender dysphoria, as opposed to any other medical
diagnosis.” Mercy routinely allows Dr. Dawson and other
physicians to perform hysterectomies for patients on the
bases of diagnoses other than gender dysphoria, including
“for indications such as chronic pelvic pain and
uterine fibroids.” Mercy's refusal to allow Dr.
Dawson to perform the hysterectomy caused Minton “great
anxiety and grief.” The complaint explains that the
timing of Minton's hysterectomy was particularly
sensitive because it needed to be completed three months
before his phalloplasty that was scheduled for November 23.
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.
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 ...