Prescott v. Rady Children's Hospital-San Diego Case No.: 16-cv-02408-BTM-JMA S.D. Cal. Sept. 27, 2017 [Katharine Prescott...

  

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Prescott v. Rady Children's Hospital-San Diego Case No.: 16-cv-02408-BTM-JMA S.D. Cal. Sept. 27, 2017 [Katharine Prescott filed suit against Rady Children's Hospital-San Diego (RCHSD) on behalf of herself and her deceased minor son, Kyler. She alleged that RCHSD advertised that it was expert in treating transgender and gender-nonconforming children and adoles- cents and that it was "competent, careful, and experienced in the care and treatment of patients, particularly transgender patients and those with gender dysphoria." The opinion defined gender dysphoria "as a marked difference between a person's gender identity and their assumed gender at birth, which persists for at least six months and manifests itself in at least two other symptoms (e.g., 'a desire to prevent the development of the anticipated secondary sex characteristics,' 'a strong desire to be of the other gender,' and 'a strong desire to be treated as the other gender')." In her lawsuit, Ms. Prescott alleged viola- tions of various statutes, including Title IX of the Education Amendments of 1973, a section of the Affordable Care Act that bars discrimi- nation on any ground that is prohibited by the Civil Rights Act, and certain other federal statutes. She also alleged violations of Cali- fornia's unfair competition and false adver- tising laws.] 1. Background Kyler was assumed to be female at birth. However, at the age of ten Kyler began exhib- iting signs that he was a boy. At the age of twelve, due to increasing gender dysphoria, Kyler began engaging in self-harming behav- iors. When Kyler was thirteen, he told Ms. Prescott that he was a boy. As Kyler entered puberty, his gender dysphoria signifi- cantly worsened and he continued to engage in severe self-harming behaviors. [Over the next few years he saw a therapist and an endocrinologist and received some treat- ment, but "he still experienced depression and gender dysphoria" and continued to have suicidal thoughts. Eventually he was admitted to RCHSD's Child and Adolescent Psychiatry Services ("CAPS") unit on a psychiatric hold because he was a danger to himself.] The RCHSD and CAPS staff was informed by Ms. Prescott of Kyler's male identity and "his need to be referred to exclusively with male gender pronouns." Kyler's medical records reflected his legal name and gender change. His male gender identity was also denoted on his RCHSD medical wrist bracelet. Upon intake, the RCHSD staff assured Ms. Prescott "that Kyler's sex and gender identity would be respected and affirmed" and that "all staff would refer to Kyler with male gen- der pronouns and would otherwise treat him as a boy." Despite knowing that Kyler was a "trans- gender boy in acute psychological distress," "nursing and other RCHSD staff repeatedly addressed and referred to Kyler as a girl, using feminine pronouns." Kyler complained to his mother during his stay that the staff referred to him with feminine pronouns, which caused him extreme distress. Kyler also reported that while the other chil- dren who were patients initially referred to him with male pronouns, after the RCHSD staff's repeated use of female pronouns, (continued) (continued from previous page) the children also began calling him "she." After Kyler was discharged, he also told Ms. Prescott that one RCHSD employee told him, "Honey, I would call you 'he,' but you're such a pretty girl." Every time Ms. Prescott observed staff calling Kyler "she," she reiter- ated that "it was essential to exclusively refer to Kyler with male gender pronouns, and that misgendering caused him serious harm." ... Despite concerns over Kyler's continu- ing depression and suicidal thoughts, Kyler's medical providers concluded that he should be discharged early from the hold at RCHSD because of the staff's conduct. On April 7, 2015, Kyler was discharged from RCHSD's facility. After being discharged, Kyler contin- ued to feel anxious and depressed as a result of RCHSD staff's treatment during his stay. On May 18, 2015, Kyler died by suicide. III. Discussion ... At the outset it is worth noting that in evaluating Title IX [Education Act] claims, fed- eral courts regularly look to [Civil Rights Act] Title VII cases for guidance. [For example, in one case] the Ninth Circuit... reasoned that "sex' under Title VII encompasses both sex- that is, the biological difference between men Discussion Questions and women-and gender." It explained that while earlier cases distinguished between "sex" and "gender," the Supreme Court [has] abandoned this distinction and held that Title VII bars discrimination based on both an individual's sex and failure to conform to socially-constructed gender expectations. [Specifically,] the Ninth Circuit reaffirmed that "it is unlawful to discriminate against a trans- gender (or any other) person because he or she does not behave in accordance with an employer's expectations for men or women." Other Circuits have similarly interpreted the sex discrimination provisions under Title IX and Title VII to protect transgender indi- viduals from discrimination.... Because Title VII, and by extension Title IX, recognize that discrimination on the basis of transgender identity is discrimination on the basis of sex, the Court interprets the ACA to afford the same protections. [The court denied the hospital's motion to dismiss Ms. Prescott's claim for damages under the ACA's nondiscrimination provi- sions. It also denied motions to dismiss her allegations of unfair competition and unfair advertising in violation of California law. The question of damages was reserved for further proceedings.] 1. Can you explain why this is a civil rights issue? Why do you suppose Ms. Prescott did not assert a wrongful death claim? 2. What were the responsibilities of the CAPS unit personnel in implementing the psychiatric "hold," and why were they not carried out? 3. What is the difference between "sex" and "gender"? 4. Can you explain the terms transgender, transsexual, gender nonconforming, and cisgender? How do they differ, if at all, from sexual orientation? 5. How can HR policies and practices be used to deal with these kinds of situations? Prescott v. Rady Children's Hospital-San Diego Case No.: 16-cv-02408-BTM-JMA S.D. Cal. Sept. 27, 2017 [Katharine Prescott filed suit against Rady Children's Hospital-San Diego (RCHSD) on behalf of herself and her deceased minor son, Kyler. She alleged that RCHSD advertised that it was expert in treating transgender and gender-nonconforming children and adoles- cents and that it was "competent, careful, and experienced in the care and treatment of patients, particularly transgender patients and those with gender dysphoria." The opinion defined gender dysphoria "as a marked difference between a person's gender identity and their assumed gender at birth, which persists for at least six months and manifests itself in at least two other symptoms (e.g., 'a desire to prevent the development of the anticipated secondary sex characteristics,' 'a strong desire to be of the other gender,' and 'a strong desire to be treated as the other gender')." In her lawsuit, Ms. Prescott alleged viola- tions of various statutes, including Title IX of the Education Amendments of 1973, a section of the Affordable Care Act that bars discrimi- nation on any ground that is prohibited by the Civil Rights Act, and certain other federal statutes. She also alleged violations of Cali- fornia's unfair competition and false adver- tising laws.] 1. Background Kyler was assumed to be female at birth. However, at the age of ten Kyler began exhib- iting signs that he was a boy. At the age of twelve, due to increasing gender dysphoria, Kyler began engaging in self-harming behav- iors. When Kyler was thirteen, he told Ms. Prescott that he was a boy. As Kyler entered puberty, his gender dysphoria signifi- cantly worsened and he continued to engage in severe self-harming behaviors. [Over the next few years he saw a therapist and an endocrinologist and received some treat- ment, but "he still experienced depression and gender dysphoria" and continued to have suicidal thoughts. Eventually he was admitted to RCHSD's Child and Adolescent Psychiatry Services ("CAPS") unit on a psychiatric hold because he was a danger to himself.] The RCHSD and CAPS staff was informed by Ms. Prescott of Kyler's male identity and "his need to be referred to exclusively with male gender pronouns." Kyler's medical records reflected his legal name and gender change. His male gender identity was also denoted on his RCHSD medical wrist bracelet. Upon intake, the RCHSD staff assured Ms. Prescott "that Kyler's sex and gender identity would be respected and affirmed" and that "all staff would refer to Kyler with male gen- der pronouns and would otherwise treat him as a boy." Despite knowing that Kyler was a "trans- gender boy in acute psychological distress," "nursing and other RCHSD staff repeatedly addressed and referred to Kyler as a girl, using feminine pronouns." Kyler complained to his mother during his stay that the staff referred to him with feminine pronouns, which caused him extreme distress. Kyler also reported that while the other chil- dren who were patients initially referred to him with male pronouns, after the RCHSD staff's repeated use of female pronouns, (continued) (continued from previous page) the children also began calling him "she." After Kyler was discharged, he also told Ms. Prescott that one RCHSD employee told him, "Honey, I would call you 'he,' but you're such a pretty girl." Every time Ms. Prescott observed staff calling Kyler "she," she reiter- ated that "it was essential to exclusively refer to Kyler with male gender pronouns, and that misgendering caused him serious harm." ... Despite concerns over Kyler's continu- ing depression and suicidal thoughts, Kyler's medical providers concluded that he should be discharged early from the hold at RCHSD because of the staff's conduct. On April 7, 2015, Kyler was discharged from RCHSD's facility. After being discharged, Kyler contin- ued to feel anxious and depressed as a result of RCHSD staff's treatment during his stay. On May 18, 2015, Kyler died by suicide. III. Discussion ... At the outset it is worth noting that in evaluating Title IX [Education Act] claims, fed- eral courts regularly look to [Civil Rights Act] Title VII cases for guidance. [For example, in one case] the Ninth Circuit... reasoned that "sex' under Title VII encompasses both sex- that is, the biological difference between men Discussion Questions and women-and gender." It explained that while earlier cases distinguished between "sex" and "gender," the Supreme Court [has] abandoned this distinction and held that Title VII bars discrimination based on both an individual's sex and failure to conform to socially-constructed gender expectations. [Specifically,] the Ninth Circuit reaffirmed that "it is unlawful to discriminate against a trans- gender (or any other) person because he or she does not behave in accordance with an employer's expectations for men or women." Other Circuits have similarly interpreted the sex discrimination provisions under Title IX and Title VII to protect transgender indi- viduals from discrimination.... Because Title VII, and by extension Title IX, recognize that discrimination on the basis of transgender identity is discrimination on the basis of sex, the Court interprets the ACA to afford the same protections. [The court denied the hospital's motion to dismiss Ms. Prescott's claim for damages under the ACA's nondiscrimination provi- sions. It also denied motions to dismiss her allegations of unfair competition and unfair advertising in violation of California law. The question of damages was reserved for further proceedings.] 1. Can you explain why this is a civil rights issue? Why do you suppose Ms. Prescott did not assert a wrongful death claim? 2. What were the responsibilities of the CAPS unit personnel in implementing the psychiatric "hold," and why were they not carried out? 3. What is the difference between "sex" and "gender"? 4. Can you explain the terms transgender, transsexual, gender nonconforming, and cisgender? How do they differ, if at all, from sexual orientation? 5. How can HR policies and practices be used to deal with these kinds of situations?