Minton Petition For Review
Minton Petition For Review
S______
EVAN MINTON,
vs.
DIGNITY HEALTH,
Page
2
TABLE OF AUTHORITIES
Page
CASES
Allen v. Sisters of St. Joseph
(N.D. Tex. 1973) 361 F.Supp. 1212, aff’d (5th Cir. 1974)
490 F.2d 81 ............................................................................................ 32
Belton v. Comcast Cable Holdings
(2007) 151 Cal.App.4th 1224 ................................................................ 21
Burwell v. Hobby Lobby Stores
(2014) 134 S.Ct. 2751 ............................................................................ 26
Catholic Charities v. Superior Court
3
TABLE OF AUTHORITIES
(continued)
Page
4
TABLE OF AUTHORITIES
(continued)
Page
Overall v. Ascension
(E.D. Mich. 2014) 23 F.Supp.3d 816..................................................... 11
People v. Woody
(1964) 61 Cal.2d 716 ............................................................................. 24
Sands v. Morongo Unified Sch. Dist.
(1991) 53 Cal.3d 863 ............................................................................. 24
Taylor v. St. Vincent’s Hosp.
(9th Cir. 1975) 523 F.2d 75 ................................................................... 32
Trinity Lutheran Church v. Comer
5
TABLE OF AUTHORITIES
(continued)
Page
6
Dignity Health petitions for review of the September 17, 2019
published decision of the Court of Appeal, First Appellate District, Division
Four (Appendix), and prays that, upon review, the decision be reversed.
1
Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012)
565 U.S. 171, 189.
7
medical procedure is denied based on religious objections—and that “any
burden the Unruh Act places on the exercise of religion is justified by
California’s compelling interest in ensuring full and equal access to medical
treatment for all its residents, and that there are no less restrictive means
available for the state to achieve that goal.” (Slip Op. 10-11 [emphasis
added].) North Coast held no such thing. It did not involve doctrinal
prohibitions on a religious institution’s provision of particular medical
procedures. There, this Court considered the constitutionality of the Unruh
Act only where individual doctors had religious objections to performing
certain procedures. The Opinion ignores the very different context here and
2
Cal. Const., art. I, § 4.
8
support the Opinion. But Masterpiece does not support the Opinion; it
struck down a ruling imposing the antidiscrimination law on the faith-based
objector. Masterpiece is replete with statements mirroring Dignity Health’s
position in this case. (See infra Part IV.D.2.) Exactly the same point
expressed in Masterpiece exists here: just as one would correctly “assume”
that a member of the clergy would not be compelled by antidiscrimination
statutes to perform a prohibited ceremony, the law should “assume” that
Mercy San Juan Medical Center (Mercy), a Catholic hospital, cannot be
compelled to perform procedures the ERDs prohibit. Contrary to
Masterpiece, the Opinion boldly “inferred” that adherence to the ERDs is
3
Slip Op. 7.
4
See Wilson, When Governments Insulate Dissenters From Social Change:
What Hobby Lobby and Abortion Conscience Clauses Teach About Specific
Exemptions (2014) 48 U.C. Davis L.Rev.703, 766, fn. 316 (quoting Senate
discussion of need for conscience protections: there is a “real and present
danger that many of these religious hospitals, if coerced into performing
operations for abortions or sterilizations contrary to their religious precepts,
will simply eliminate their obstetrics department”).
9
ERDs is not intentional discrimination against any person or group, but is
an act of religious faith. The ERDs differentiate among procedures, not
among classes of people. This case involves a transgender man who sought
a hysterectomy (an elective sterilization operation) at a Catholic hospital as
treatment for gender dysphoria. The case law consistently recognizes the
rights of Catholic hospitals to deny procedures, including sterilizations, that
the ERDs prohibit. (See infra Part IV.D.2.) As the trial court found in an
unchallenged ruling, “both sides agree that the reason [the procedure was
denied] was [Mercy’s] interpretation of the [ERDs].” 5 But the Opinion
expressly holds that the purported disparate impact of the ERDs on
5
1-CT-147.
6
Slip Op. 7.
7
Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 854.
8
Masterpiece, 138 S.Ct. at 1723-1724.
10
applicability—has never been applied to an institutional faith-based
provider of patient care services, such as a Catholic hospital.
Review is warranted given the potentially significant impact of the
Opinion on Catholic health care, to resolve the conflicts identified above,
and to consider the required balancing of constitutional interests of
institutional Catholic health care, prohibited medical procedures, and public
accommodations law. The Opinion’s animosity to religion—according no
respect to the ERDs, failing to balance the constitutional interests involved,
and treating the hospital’s refusal to allow the performance of an elective
hysterectomy as an actionable claim for intentional discrimination—
9
<https://dignityhlth.org/2BdvifR>
10
<https://dignityhlth.org/2MIalPr>
11
“An entity is listed in the [OCD] only if a bishop of the Roman Catholic
Church determines the entity is ‘operated, supervised, or controlled by or in
connection with the Roman Catholic Church.’ Courts view the [OCD]
listing as a public declaration by the Roman Catholic Church that an
organization is associated with the Church.” (Overall v. Ascension (E.D.
Mich. 2014) 23 F.Supp.3d 816, 831 [citation omitted].)
11
190.) 12 Mercy thus is bound to follow the ERDs promulgated by the U.S.
Conference of Catholic Bishops (USCCB). 13 (1-CT-192.) 14 The ERDs’
purpose is to “reaffirm the ethical standards of behavior in health care that
flow from the Church’s teaching about the dignity of the human person”
and “provide authoritative guidance on certain moral issues that face
Catholic health care today.” (1-CT-194-195; see also Means, 2015 WL
3970046, at *3.)
ERD 53 provides that “[d]irect sterilization of either men or women,
whether permanent or temporary, is not permitted in a Catholic health care
institution. Procedures that induce sterility are permitted when their direct
12
See McKeon v. Mercy Healthcare Sacramento (1998) 19 Cal.4th 321,
323-324 (recognizing that a Catholic hospital subject to the ERDs, whose
sole member was Dignity Health’s predecessor Catholic Healthcare West,
is a “religious association or corporation” within the meaning of FEHA).
13
The trial court took judicial notice of the ERDs. (2-CT-432; see also Slip
Op. 3, fn. 2.)
14
“Individual bishops exercise authority under Canon Law to bind all
Catholic health care institutions located within their diocese to the ERDs as
particular law within the diocese.” (Means v. U.S. Conf. of Catholic
Bishops (W.D. Mich. 2015) 2015 WL 3970046, at *3, aff’d (6th Cir. 2016)
836 F.3d 643.)
15
<https://bit.ly/2QlFbNx>
16
The Church recently confirmed that “the removal of the uterus [is]
morally licit [proper] when there is a grave and present danger to the life or
12
pathological condition of the uterus (e.g., a hemorrhage which cannot be
stopped by other means) ... makes its removal medically indicated” and
where “the uterus ... constitute[s] in and of itself [a] present danger to the
woman,” the procedure is permissible. (Ibid.)
ERD 29 provides that “[a]ll persons served by Catholic health care
have the right and duty to protect and preserve their bodily and functional
integrity. The functional integrity of the person may be sacrificed to
maintain the health or life of the person when no other morally permissible
means is available.” (1-CT-211 [endnote omitted].)
ERD 5 provides that “Catholic health care services must adopt these
13
¶ 19.) On August 28, 2016, Minton told a Mercy nurse he is transgender.
(1-CT-12 ¶ 21.) The following day, Mercy notified Dr. Dawson that the
procedure was cancelled. (1-CT-12 ¶ 26.) Dr. Dawson discussed the
cancellation with a Mercy nurse manager and with Mercy’s president.
(Ibid.) The parties disagree about the ensuing course of events, but they
agree, and the court recognized, that Dr. Dawson was allowed to perform
the procedure three days later at Methodist Hospital, a non-Catholic
Sacramento hospital owned by Dignity Health. (1-CT-13 ¶ 25.) After
having the procedure at Methodist, Minton sued Dignity Health for
violating Unruh. (1-CT-7.)
witness to the dignity of the human person. The Church’s moral teaching
on health care nurtures a truly interpersonal professional-patient
relationship. This professional-patient relationship is never separated, then,
from the Catholic identity of the health care institution. The faith that
inspires Catholic health care guides medical decisions in ways that fully
respect the dignity of the person and the relationship with the health care
professional.” (1-CT-210.)
14
did not accommodate the surgery simultaneously with denying the
procedure at Mercy, Minton’s allegations stated an Unruh claim. The court
stated at the outset of the Opinion that it could decide the case on a
“narrow[]” ground (Slip Op. 1), yet it came to conclusions about Mercy’s
constitutional rights using perfunctory analysis, and it published the
Opinion. The court rejected Dignity Health’s argument that compelling a
Catholic hospital to permit prohibited procedures violated its freedom of
religion and freedom of speech, concluding that North Coast already held
that the Unruh Act is a compelling state interest that will always outweigh
these constitutional freedoms in the “medical treatment” context. (Slip Op.
15
Am. Med. Colls. (2008) 167 Cal.App.4th 1401, 1408 [emphasis added].)
The Opinion holds that Minton’s complaint states a claim for
violation of Unruh simply by alleging the hospital denied the procedure.
The court opines that damages could be “mitigated” by evidence
demonstrating that Dignity Health’s accommodation of Minton’s surgery at
another hospital met the court’s undefined standard for “full and equal”
access. (Slip Op. 9.) However, the court gives only passing and dismissive
consideration to the profound constitutional implications of imposing such
a massive burden on the religious and expressive rights of institutional
Catholic health care. Review is needed to hold that a Catholic hospital’s
The parties and the trial court agreed that Mercy denied the non-
emergency procedure based on its “interpretation of the [ERDs].” (1-CT-
147.) Mercy’s policy of not allowing a hysterectomy because of the ERDs
is facially neutral and thus not prohibited by Unruh. The Opinion entirely
disregards the nature and purpose of religious teaching and implicitly
attributes to Dignity Health a pernicious intent that is fundamentally
irreconcilable with the ERDs.
Minton did not allege that Dignity Health’s denial of a hysterectomy
to treat gender dysphoria is intentional discrimination against transgender
people because they are transgender or that the prohibition was put in place
to accomplish such discrimination. He did not allege that Mercy refused or
would refuse to provide any medical treatment to Minton or any other
transgender person other than sterilization prohibited by the ERDs. Minton
16
did not allege that Mercy would have denied him another, non-sterilizing
treatment for his gender dysphoria. Minton alleged that hysterectomies are
performed at Mercy to treat various pathologies: uterine fibroids,
endometriosis, pelvic support problems, abnormal uterine bleeding, chronic
pelvic pain, and gynecological cancer. (1-CT-152 ¶ 15.) Minton might
have needed a hysterectomy for any of these reasons, but he did not allege
that he needed the procedure for any of these reasons or that Mercy would
have refused to allow him a hysterectomy for any such reasons. And he did
not allege that Mercy would perform a hysterectomy on a healthy organ for
any person, transgender or otherwise. 19
19
In his concurring opinion in Masterpiece, Justice Gorsuch recognized a
distinction between refusing to provide a particular service based on
religious principles and refusing to provide a service to a particular type of
person. He recognized that a baker’s refusal to bake a wedding cake
celebrating a same-sex marriage was not the same thing as refusing to sell
any cake at all to a same-sex couple. “[I]t was the kind of cake, not the
kind of customer, that mattered to the bakers.” (Masterpiece, 138 S.Ct. at
1735-1736 [“there’s no indication the bakers actually intended to refuse
service because of a customer’s protected characteristic”] [emphasis in
original].) Similarly, here, the ERDs prohibit rendering certain procedures,
not treating certain people.
17
respect and compassion. The Church articulated this requirement at the
Second Vatican Council in 1965: “[W]ith respect to the fundamental rights
of the person, every type of discrimination, whether social or cultural,
whether based on sex, race, color, social condition, language or religion, is
to be overcome and eradicated as contrary to God’s intent.” 20 And ERD 23
provides that “[t]he inherent dignity of the human person must be respected
and protected regardless of the nature of the person’s health problem or
social status. The respect for human dignity extends to all persons who are
served by Catholic health care.” (1-CT-210 [emphasis added].)
Even though Minton alleged no facts to suggest anything other than
20
<https://bit.ly/WyDi4S> (Vatican Council II, Pastoral Constitution of the
Church in the Modern World, n. 29 [emphasis added].)
18
ERDs’ prohibitions indisputably are based not on characteristics of the
person who seeks a procedure, but on the nature of the procedure itself.
(Masterpiece, 138 S.Ct. at 1735-1736 [conc. opn. of Gorsuch, J.].)
Hospitals perform all manner of medical services for all manner of patients
suffering from all manner of conditions. But a Catholic hospital is
forbidden to remove a uterus from any patient unless there is a serious
physical condition or pathology. That is not because the hospital intends to
provide unequal service to transgender persons. It is because the hospital
must disallow procedures resulting in sterilization under such
circumstances and must preserve bodily integrity where possible to do so.
The Opinion acknowledges the established rule that the Unruh Act
does not reach cases of disparate impact of a facially neutral policy on a
protected group. (Slip Op. 6; see also Harris, 52 Cal.3d at 1175 [“A
disparate impact analysis or test does not apply to Unruh Act claims.”]; id.
at 1172 [“No case has extended the [disparate impact] test to the Unruh
Act.”]; Koebke, 36 Cal.4th at 854; Turner, 167 Cal.App.4th at 1408.) “By
its nature, an adverse impact claim challenges a standard that is applicable
alike to all such persons based on the premise that, notwithstanding its
universal applicability, its actual impact demands scrutiny. If the
Legislature had intended to include adverse impact claims, it would have
omitted or at least qualified this language [exempting standards that are
‘applicable alike to persons of every sex ...’].” (Harris, 52 Cal.3d at 1172-
1173.)
The Opinion conflicts with these cases because it is squarely based
19
on a disparate impact theory. That would be true of any case holding that
denial of a service based on the ERDs is intentional discrimination. Here,
the court drew an “inference” of intentional discrimination against
transgender people from the presumed fact that the ERDs’ prohibition on
removal of a healthy uterus will primarily affect that group. It stated:
“Denying a procedure as treatment for a condition that affects only
transgender persons supports an inference that Dignity Health discriminated
against Minton based on his gender identity.” (Slip Op. 7.) The court said
it relied on Koebke, but Koebke expressly rejected such an inference where
“plaintiffs’ argument, like disparate impact analysis, relies on the effects of
20
objective policies developed independently based on religious concerns for
bodily integrity. Minton did not allege Mercy applied the ERDs in a
manner intended to disfavor transgender people, such as that it did not
enforce or apply the ERDs’ prohibition on non-emergency sterilizations
sought by cisgender men and women. He did not allege that the USCCB
wanted to use the ERDs to prevent transgender persons from having
surgical treatment because they are transgender. In fact, Minton never even
mentioned Koebke until his reply brief on appeal, despite Dignity Health’s
extensive reliance on Koebke in two demurrers. And he never asserted that
he could amend to allege this theory. Nonetheless, the Opinion improperly
21
despite disparate impact on blind persons].)
22
the hospital makes efforts to accommodate the individual at an affiliated
non-Catholic hospital, but a court, after the fact, deems those efforts not
fast enough?
No faith-based hospital should be compelled to compromise its
religious principles by cooperating in ensuring that a patient receives a
prohibited procedure or else be subject to judicial scrutiny of the adequacy
of its efforts. The constitutional infirmity of placing such burdens on
religion was settled by the U.S. Supreme Court years ago, when it
recognized “a spirit of freedom for religious organizations, an
independence from secular control or manipulation, in short, power to
21
Under the ecclesiastical abstention doctrine, “[s]tate courts must not
decide questions of religious doctrine; those are for the church to resolve.”
(Episcopal Church Cases (2009) 45 Cal.4th 467, 473.) In Means, 2015 WL
3970046, at *12-*13, the court dismissed on ecclesiastical abstention
grounds claims that would require the court to conduct a “nuanced
discussion about how a ‘direct abortion’ is defined in Catholic doctrine.”
The court explained it “cannot determine whether the establishment of the
ERDs constitute[s] negligence because it necessarily involves inquiry into
the ERDs themselves, and thus into Church doctrine,” and “[w]here the
Court must scrutinize religious doctrine to assess the merits of a legal
position, the Court risks excessively entangling the law in the free exercise
of religion.”
23
D. State and federal constitutional guarantees of freedom of
religion and speech weigh heavily against the Opinion’s
interpretation of the Unruh Act.
24
The Opinion says the argument that Unruh cannot compel Catholic
hospitals to violate their religious principles was “soundly rejected in North
Coast.” (Slip Op. 10.) It says this Court “held that any burden the Unruh
Act places on the exercise of religion is justified by California’s compelling
interest in ensuring full and equal access to medical treatment for all its
residents, and that there are no less restrictive means available for the state
to achieve that goal.” (Id. 10-11 [emphasis added].) North Coast,
however, did not say or imply this and did not address the rights of
institutional religious organizations such as Catholic hospitals. Strict
scrutiny requires a particularized, “focused,” case-by-case analysis of the
25
of being chilled by government action and deserves heightened
constitutional protection. (Corporation of the Presiding Bishop v. Amos
(1987) 483 U.S. 327, 344-345 (conc. opn. of Brennan. J.) [“unlike for-profit
corporations, nonprofits historically have been organized specifically to
provide certain community services, not simply to engage in commerce.
Churches often regard the provision of such services as a means of
fulfilling religious duty and of providing an example of the way of life a
church seeks to foster.”]; id. at 342 [“furtherance of the autonomy of
religious organizations often furthers individual religious freedom as
well”]; Burwell v. Hobby Lobby Stores (2014) 573 U.S. 682, 752 (diss. opn.
22
“[A] law substantially burdens a religious belief if it ‘conditions receipt
of an important benefit upon conduct proscribed by a religious faith …
thereby putting substantial pressure on an adherent to modify his behavior
and to violate his beliefs.’” (Catholic Charities, 32 Cal.4th at 562 [citation
omitted].)
26
affiliated non-Catholic hospital.
The question whether less restrictive alternatives exist in a particular
case requires a balancing, which the court here did not perform. In North
Coast, the Court rejected two doctors’ argument that their constitutional
rights to free speech and exercise of religion immunized them from Unruh
when they refused to perform a fertilization procedure for a lesbian patient.
(Id. at 1157-1159.) However, the Court explained that the statute could
have been honored, without conflicting with the doctors’ religious views,
had they denied the procedure for all patients or arranged for the procedure
to be performed by other doctors at the clinic without religious objection to
27
not so certain this balance of competing interests would
produce the same result in the case of a sole practitioner ...
who lacks the opportunity to ensure the patient’s treatment by
another member of the same establishment. At least where
the patient could be referred with relative ease and
convenience to another practice, I question whether the state’s
interest in full and equal medical treatment would compel a
physician in solo practice to provide a treatment to which he
or she has sincere religious objections. One might well
conclude that, in that situation, application of the Unruh Civil
Rights Act against the doctor would not be the means “least
restrictive” on religion of furthering the state’s legitimate
interest.
(Id. at 1162-1163 (conc. opn. of Baxter, J.) [emphasis added]; see also
28
interpretation of the Unruh Act. The Opinion’s overt disrespect for
Mercy’s religious principles itself invokes the strict scrutiny analysis
required where a state’s acts are non-neutral or hostile to religion. (Church
of the Lukumi Babalu Aye v. City of Hialeah (1993) 508 U.S. 520, 546;
Masterpiece, 138 S.Ct. at 1730 [religious animus of adjudicatory body
reflected hostility to religion and subjected its decision to strict scrutiny];
id. at 1734 (conc. opn. of Gorsuch, J.); Trinity Lutheran Church v. Comer
(2017) 137 S.Ct. 2012, 2021-2022 [policy expressly discriminating against
religion subject to strict scrutiny].) The Opinion manifests animus to
religion, rejecting out of hand any consideration of the burden on religious
23
Four Justices recently indicated willingness to reconsider Smith.
(Kennedy v. Bremerton Sch. Dist. (2019) 139 S.Ct. 634, 639 (conc. opn. of
Alito et al., JJ).)
29
with the exercise of religious freedom (id. at 1723); “determin[ing]” a
“balance” between free exercise of religion and “otherwise valid exercise of
state power” (id. at 1723-1724); “weigh[ing]” the state’s interest against the
baker’s “sincere religious objections” (id. at 1732); and placing
“sufficient[] constrain[ts]” on any decision favoring free exercise over
antidiscrimination law. (Id. at 1728-1729.) The Court clearly did not
consider the application of Smith to be cut and dried. Instead, it said “[t]he
outcome of cases like this in other circumstances must await further
elaboration in the courts, all in the context of recognizing that these
disputes must be resolved with tolerance, without undue disrespect to
30
it could be “assumed.” The Opinion here cherry-picked Masterpiece, citing
it for an isolated statement but never coming to terms with its actual
holding or its recognition that religious principles must be protected in any
balance among competing interests when applying state antidiscrimination
law.
An approach that is fully consistent with Smith yet affords “special
solicitude to the rights of religious organizations” 24 is to recognize that
Smith constrains individuals’ ability to practice their religion in violation of
generally applicable state law. Nothing in Smith, which involved
affirmative religious practices of individuals and state regulation of lawless
24
Hosanna-Tabor, 565 U.S. at 189.
31
perform a procedure prohibited by religious teaching. Thus, “[i]t does not
follow [from Smith] that a church may never be relieved from such an
obligation.” (EEOC v. The Catholic U., 83 F.3d at 462 [citations omitted;
emphasis in original].)
California and federal law have long accommodated Catholic
hospitals’ religious objections to performing particular medical services,
including elective sterilizations. (Taylor v. St. Vincent’s Hosp. (9th Cir.
1975) 523 F.2d 75, 77 [“If the hospital’s refusal to perform sterilization
infringes upon any constitutionally cognizable right to privacy, such
infringement is outweighed by the need to protect the freedom of religion
32
of the institution that is expressly based on reasons of conscience …”].)
There are no contrary decisions.
The ERDs are the religious foundation of Catholic health care
nationwide, the culmination of centuries of efforts of Catholic health care
practitioners to minister in accord with the Church’s teaching. They were
adopted to provide uniform instructions to Catholic health care providers on
ethical medical practices. 25 Under our constitutional system, such rules
demand respect. Just as with Masterpiece’s respect for the inability of
clergy to perform marriage ceremonies at odds with their faith, transgender
individuals could “recognize and accept [Catholic hospitals’ adherence to
25
O’Rourke et al., A Brief History: A Summary of the Development of the
Ethical and Religious Directives for Catholic Health Care Services (Dec.
2001) Health Progress, p. 18.
26
The baker conceded “if a baker refused to sell any goods or any cakes for
gay weddings, that would be a different matter and the State would have a
33
3. Compelling a Catholic hospital to violate the ERDs
would violate freedom of expression.
strong case under this Court’s precedents that this would be a denial of
goods and services that went beyond any protected rights of a baker who
offers goods and services to the general public and is subject to a neutrally
applied and generally applicable public accommodations law.” (Id. at
1728.) There is no allegation Mercy refused or would refuse to provide
Minton any health care other than sterilization prohibited by the ERDs.
34
adorning its edifice, and religious sacraments and symbols throughout the
hospital.
Interpreting Unruh to require Mercy to permit medical procedures
prohibited by Catholic teaching would severely burden Catholic health
care’s ability to express its message about human dignity. Content-based
restrictions on speech are subject to strict scrutiny. (Fashion Valley Mall v.
NLRB (2007) 42 Cal.4th 850, 865.) There are less restrictive means of
enforcing the state’s antidiscrimination goals (supra Part IV.C), and the
statute cannot stand as applied here.
This Court has rejected religious doctors’ and organizations’ claims
35
(Masterpiece, 138 S.Ct. at 1745 (conc. opn. of Thomas, J.) [citation
omitted]; see also National Inst. of Family & Life Advocates v. Becerra
(2018) 138 S.Ct. 2361, 2371 [law compelling organizations opposed to
abortion to provide abortion information is unconstitutional].)
V. CONCLUSION
36
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certify that this Petition for Review contains 8,290 words, not including the
page.
37
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38
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325359235.4
40
Filed 9/17/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
EVAN MINTON,
Plaintiff and Appellant,
A153662
v.
DIGNITY HEALTH, (City & County of San Francisco
Super. Ct. No. 17-558259)
Defendant and Respondent.
1
All statutory references are to the Civil Code.
1
Factual and Procedural Background
Minton 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 gender
dysphoria.
The complaint alleges that gender dysphoria is a serious medical condition
codified in the Diagnostic and Statistical Manual of Mental Disorders. “The medical
2
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.
Ivie 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
2
Without objection the court judicially noticed the Directives.
3
not subject to the Directives. Dignity Health also asserted that even if Minton had alleged
a cause of action for violation of his civil rights, its federal and state constitutional rights
of free exercise of religion and freedom of expression bar his claim.
The demurrer was sustained with leave to amend. The court found the complaint
“alleged insufficient facts to show that Dignity Health’s conduct in permitting Mr.
Minton to receive a hysterectomy at another of its hospitals violated Dignity Health’s
obligation per Civil Code 51(b) to provide ‘full and equal’ access to medical procedures
without regard to gender.”
Minton then filed an amended complaint. The amended complaint alleges that
gender dysphoria is “a medical condition unique to individuals whose gender identify
does not conform to the sex they were assigned at birth and thus usually experienced by
3
Dignity Health incorrectly argues that the allegations in the amended complaint are
inconsistent with allegations in the original complaint. In the fist complaint, Minton
alleged that Ivie “suggest[ed]” that Dr. Dawson perform the surgical procedure at
Methodist Hospital but did not allege when the suggestion was made. As indicated in the
following text above, the amended complaint alleges that the suggestion was forthcoming
only after efforts had been made to reverse the initial denial of hospital facilities.
Similarly, the difficulty presented by Dr. Dawson’s lack of privileges at Methodist
Hospital arose only when efforts were made to rectify the initial refusal to provide
facilities for Minton’s operation.
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which stated, “When a service is not offered the patient’s physician makes arrangements
for the care of his/her patient at a facility that does provide the needed service.” (Italics
omitted.) That afternoon, Minton’s attorney also contacted the hospital about the
cancellation of the surgery. During this flurry of advocacy on Minton’s behalf,
Dr. Dawson and others discussed with Ivie the possibility that Dr. Dawson could perform
Minton’s surgery at the alternative hospital. However, it was not immediately clear that
this was a viable option because Dr. Dawson did not have surgical privileges at the other
hospital, it would be difficult to fit the surgery into her busy schedule at Mercy, and it
was unclear that the hospital was within the network coverage of Minton’s insurance
policy.
Dignity Health filed a demurrer to the amended complaint on the grounds
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support of Dignity Health by the Catholic Health Association of the United States, the
Alliance of Catholic Health Care, and the Catholic Medical Association.
Discussion
I. Standard of Review
“On appeal from a judgment of dismissal after a demurrer is sustained without
leave to amend, the reviewing court assumes the truth of all facts properly pleaded by the
plaintiff. [Citations.] We also accept as true all facts that may be implied or reasonably
inferred from those expressly alleged. [Citation.] We do not assume the truth of
‘ “ ‘contentions, deductions or conclusions of fact or law.’ ” ’ [Citations.] We review the
trial court's action de novo and exercise our own independent judgment whether a cause
of action has been stated under any legal theory. [Citation.] We review the court's refusal
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their bodily and functional integrity. The functional integrity of the person may be
sacrificed to maintain the health or life of the person when no other morally permissible
means is available.” (Endnote omitted.) Directive No. 53 states, “Direct sterilization of
either men or women, whether permanent or temporary, is not permitted in a Catholic
health care institution. Procedures that induce sterility are permitted when their direct
effect is the cure or alleviation of a present and serious pathology and a simpler treatment
is not available.”
While Dignity Health may be able to assert reliance on the Directives as a defense
to Minton’s claim, the matter is not suitable for resolution by demurrer. (See North
Coast, supra, 44 Cal.4th at p. 1161 [defendant physicians can “offer evidence at trial that
their religious objections were to participating in the medical insemination of an
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III. The pleading alleges that Dignity Health denied Minton “full and
equal” access to medical care.
The trial court concluded that Minton’s claim is precluded by dicta in the
California Supreme Court’s decision in North Coast, supra, 44 Cal.4th 1145. In North
Coast, a patient sued a medical group and two of its employee physicians alleging their
refusal to perform artificial insemination on her violated the Unruh Act. (Id. at pp. 1152-
1153.) The patient was a lesbian and defendant doctors, citing their religious beliefs,
refused to perform artificial insemination on the patient because of her sexual orientation.
The question before the court was whether the physicians’ First Amendment right to free
exercise of religion exempted them from conforming their conduct to the Unruh Act’s
requirement to provide “ ‘full and equal accommodations, advantages, facilities,
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that his receiving the procedure he desired from the physician he selected to perform that
procedure three days later than he had planned and at a different hospital than he
desired deprived him of full and equal access to the procedure, even assuming . . . that
Dignity Health’s refusal to have the procedure performed at [Mercy] was substantially
motivated by Mr. Minton’s gender identity.” (Italics added.)
The trial court’s fundamental error is that it misconstrues Minton’s pleading.
Minton does not allege, nor does he contend on appeal, that providing him with access to
alternative hospital facilities violated the Unruh Act. He alleges that the Act was violated
on August 29, 2016, when defendant cancelled the scheduled procedure at Mercy and
Mercy’s president told Dr. Dawson that she would never be allowed to perform Minton’s
hysterectomy at Mercy. According to the amended complaint, that refusal was not
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objections.” (North Coast, supra, 44 Cal.4th at p. 1159.) But the amended complaint
alleges that Dignity Health failed to provide such assurance here, albeit for a relatively
short period of time. The facts alleged in the amended complaint are that Dignity Health
initially did not ensure that Minton had “full and equal” access to a facility for the
hysterectomy. To the contrary, “he experienced a startling and painful notification that
the surgery would not go forward.” When his surgery was cancelled, he was subjected to
discrimination. Dignity Health’s subsequent reactive offer to arrange treatment elsewhere
was not the implementation of a policy to provide full and equal care to all persons at
comparable facilities not subject to the same religious restrictions that applied at Mercy.
As Minton argued at the hearing on the demurrer, it cannot constitute full equality under
the Unruh Act to cancel his procedure for a discriminatory purpose, wait to see if his
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for all its residents, and that there are no less restrictive means available for the state to
achieve that goal. (Id. at p. 1158; see also Masterpiece Cakeshop, Ltd. v. Colorado Civil
Rights Commission (2018) __ U.S. __, __ [138 S.Ct. 1719, 1727] [“While . . . religious
and philosophical objections are protected [by the First Amendment], it is a general rule
that such objections do not allow business owners and other actors in the economy and in
society to deny protected persons equal access to goods and services under a neutral and
generally applicable public accommodations law.”].) The court also rejected the
contention that compelling doctors to perform a procedure on all persons “infringes upon
their First Amendment rights to free speech and free exercise of religion.” (44 Cal.4th at
p. 1157.) Quoting from Catholic Charities of Sacramento, Inc. v. Superior Court (2004)
32 Cal.4th 527, 558, the court repeated, “ ‘For purposes of the free speech clause, simple
POLLAK, P. J.
WE CONCUR:
TUCHER, J.
BROWN, J.
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Trial court: San Francisco County Superior Court
David L. Shapiro
A153662
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