Lawsuit Challenging For-Profit Plasma Company’s Refusal of Transgender Donor Is Resolved

FOR IMMEDIATE RELEASE: Monday, April 10, 2017
CONTACT
Sarah MacDonald, Legal Voice
206-682-9552 x107
smacdonald@legalvoice.org

A lawsuit challenging a plasma collection company’s refusal to allow donations by a transgender woman has been resolved, two months before the case was scheduled for trial in federal court in Seattle. 

The case, Kaiser v. CSL Plasma, Inc., was filed in April 2015 in Seattle by Jasmine Kaiser, a transgender woman. Ms. Kaiser alleged that CSL Plasma refused to allow her to donate plasma at its facility in Kent, Washington in June 2014 because she is transgender. She also alleged in her complaint that she was told CSL Plasma would place a “lifetime deferment” on her ability to donate and would inform other donation centers about the deferment. 

The lawsuit included claims against CSL Plasma for alleged violations of Washington State’s Law Against Discrimination and Consumer Protection Act. The Washington Law Against Discrimination prohibits places of public accommodation from discriminating based on a person’s gender identity. 

The case was originally filed in Washington state court, which denied CSL Plasma’s attempt to dismiss Ms. Kaiser’s lawsuit.  Washington Attorney General Bob Ferguson submitted a friend of the court brief supporting Ms. Kaiser’s position that CSL Plasma is a place of public accommodation and is subject to the non-discrimination requirements of the Washington Law Against Discrimination.   

In this litigation, Ms. Kaiser argued that no federal law, rule, or other policy authorizes plasma centers to deny donors because they are transgender. Although the U.S. Food and Drug Administration (FDA) has adopted policies restricting blood or plasma donations by men who have had sex with men, the FDA has never adopted a rule or policy barring donations based on the fact that a person is transgender. 

After this lawsuit was filed, the FDA issued revised guidance in December 2015 regarding blood product donation policies. The FDA’s updated guidance continues to provide no ban on donations of blood products by transgender people. The FDA’s revised guidance also specified that blood product collection centers should accept a donor’s self-identification of their gender, meaning that a transgender woman like Ms. Kaiser should be screened as a woman. 

Ms. Kaiser’s case was later moved to federal court. On March 2, 2017, Chief Judge Ricardo Martinez of the U.S. District Court in Seattle ruled in favor of Ms. Kaiser on key issues in the case. In particular, Judge Martinez agreed with Ms. Kaiser that federal law does not shield CSL Plasma from her claims brought under Washington state law. Judge Martinez noted in his ruling that CSL Plasma had failed to provide any guideline, regulation, or law that requires the wholesale rejection of donations from transgender people by plasma collection centers. 

The lawsuit was resolved by the parties soon after this ruling. In briefing filed with the court, CSL Plasma acknowledged that the FDA issued revised guidance for collection facilities regarding transgender donors in December 2015, and indicated that the company has worked to follow the FDA’s guidance. 

Ms. Kaiser was represented in this case by David Ward of Legal Voice, a Seattle-based women’s rights organization; Isaac Ruiz, Kayti Knudson, and Gabe Verdugo of Keller Rohrback LLP; and Jill Gaulding of Gender Justice, a Minnesota-based organization devoted to addressing gender inequality. Her attorneys applaud Ms. Kaiser’s courage in bringing the lawsuit and note the significance of the court’s rulings in this case. 

“Judge Martinez recognized that federal law doesn’t give plasma centers a license to discriminate against transgender people,” said David Ward of Legal Voice. “Washington law protects transgender people from being treated like second-class people.” 

“The rulings in this case should make it clear that no one can be turned away from donating blood or plasma in Washington State simply because they are transgender,” said Isaac Ruiz of Keller Rohrback.  “We are grateful to Ms. Kaiser for stepping forward and refusing to accept being treated differently because she is transgender.” 

“We were proud to join in representing Ms. Kaiser in this case,” said Jill Gaulding of Gender Justice. “We fight discrimination against transgender people in many different states, and the federal court’s ruling in this case will help transgender people across the country.” 

David Ward can be reached through Sarah MacDonald, Marketing & Communications Manager, at smacdonald@legalvoice.org or 206-682-9552 x107. 
Additional contacts:
Isaac Ruiz, Keller Rohrback, LLP: 206-623-1900; info@kellerrohrback.com
Jill Gaulding, Gender Justice: 651-789-2090   

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Legal Voice is a progressive feminist organization using the power of the law to make positive change for women and girls in the Northwest. Legal Voice uses ground-breaking litigation, legislative advocacy, and community education to fight gender oppression and injustice in the legal system. 

Gender Justice is a nonprofit legal advocacy organization that seeks to eliminate gender inequality through litigation, public policy advocacy, and education programs. Founded in 2010, Gender Justice is based in the Twin Cities and serves the Upper Midwest. 

Keller Rohrback L.L.P., with offices in Seattle, Phoenix, New York, and Santa Barbara, serves as lead and co-lead counsel in lawsuits throughout the country and is proud to offer its expertise to clients nationwide, and our trial lawyers have obtained judgments and settlements on behalf of clients in excess of seven billion dollars. 

Testimony of Lisa Stratton, Co‐founder and Senior Counsel, Gender Justice, Opposing HF 809

Below is the testimony of Lisa Stratton, Co-founder and Senior Counsel of Gender Justice in opposition of HF 809. This testimony took place at the Minnesota House of Representatives Health and Human Services Reform Committee on Thursday, March 2, 2017.

My name is Lisa Stratton. I’m an attorney and a co‐founder of the nonprofit law and policy organization, Gender Justice. Gender Justice works to eliminate gender barriers Minnesotans face due to their gender, sexual orientation, or gender identity. Prior to founding Gender Justice, I was a member of the law faculty at the University of Minnesota Law School. I have been a practicing lawyer focused on gender equality for twenty years. In 2013, Gender Justice represented the nonprofit Pro‐Choice Resources, co‐counseling with the Center for Reproductive Rights in New York, in litigation involving a legal challenge to Minnesota’s Medicaid funding of therapeutic abortion.

I am testifying to share one simple message: HF 809 is unconstitutional.

In 1995, the Minnesota Supreme Court ruled in Doe v. Gomez, 542 N.W.2d 17 (Minn. 1995), that the right to privacy under the Minnesota constitution protects not simply the right to an abortion. It protects the woman’s decision to abort, and any legislation infringing on that decision‐making process violates that fundamental right. I offer the following brief description of the Court’s decision and why it means that HF 809 violates the Minnesota Constitution. I’ll note first that all involved in the Gomez case, the plaintiffs (Jane Doe, representing the Women of the State of MN), the state (represented by the Attorney General), and the Court, all agreed on two things:

  • The right to decide whether to have an abortion is a fundamental right and is protected by the right to privacy in the Minnesota Constitution. Gomez, 542 N.W.2d at 27.
     
  • Without Medicaid funding of therapeutic abortion as part of their reproductive health care, some low‐income women would receive later abortions, and “that delay in the performance of abortion may cause some increase in the health risk to the pregnant woman and can impose pain, discomfort, or increased risks for women with medical complications.” Id. at 26.

The plaintiffs in Gomez challenged a law passed by this legislature that excluded abortion from coverage under the state’s health care plans for low‐income people. The question before the Court was whether funding childbirth‐related health services without funding abortion‐related health services interferes with a woman's constitutionally‐protected decision‐making process.

The Court noted that “as the highest court of this state, it is independently responsible for safeguarding the rights of our citizens,” and held that the case presented a circumstance in which the Minnesota Constitution provides greater protections than the federal constitution.

Id. at 30. The right to privacy under the Minnesota constitution protects “not simply the right to an abortion, but rather it protects the woman’s decision to abort; any legislation infringing on the decision‐making process, then, violates this fundamental right.Id. at 31 (emphasis added). Ultimately, the court concluded that the challenged statutes violated the state constitutional right to privacy by impermissibly infringing upon an individual’s decision whether to have an abortion. Id.

The Minnesota Court gave several reasons for its departure from federal constitutional law. One was Minnesota’s “long tradition of affording persons on the periphery of society a greater measure of government protection and support than may be available elsewhere,” a tradition it found evident in the actions of this legislature on behalf of those who are largely without influence in society, including the poor. Gomez, 542 N.W.2d at 30.

The Court held that “the discriminatory distribution of the government benefits can discourage the exercise of fundamental liberties just as effectively as can an outright denial of those rights through criminal and regulatory sanctions.” Id. at 29.

Gomez is a constitutional‐level decision by the highest state court interpreting the scope of a fundamental right under its state constitution. There is no greater protection a legal right could have under state law. The only ways the Gomez ruling could be “undone” are a decision of the Minnesota Supreme Court to overrule its own precedent, or by amending our state’s constitution.

It is exceedingly rare for the highest appellate court of a state or the U.S. Supreme Court to completely reverse itself. As a State Representative in Utah reportedly said recently, in reference to state bills seeking to overturn Roe v. Wade, "any time a state will do a full frontal challenge” to a constitutional decision of the highest court, “you need a reasonable belief you'll meet that challenge." You do not have that here.

If this bill became law, the result would be an immediate court challenge that would ultimately result in the Minnesota Supreme Court (which just reaffirmed the Gomez decision in 2013) finding the law unconstitutional under Gomez.

The cost to the taxpayers of Minnesota could be enormous, as demonstrated by examples other states’ experiences in the last few years.

  • Kansas spent nearly $400,000 in legal bills in six months defending new laws to restrict abortion, according to the Kansas attorney general's office.
     
  • The South Dakota state Legislative Research Council estimated that the cost of defending an abortion restriction requiring a three‐day waiting period for an abortion could be between $1.7 and $4 million. South Dakota chose instead not to appeal an adverse ruling, and paid the challengers’ over $600,000 for their attorney’s fees.
     
  • North Carolina had to tap its emergency fund in 2016 to pay $1 million in attorneys’ fees after a law requiring a woman to view an ultrasound was ruled unconstitutional.
     
  • After a district court ruling that a Wisconsin law was an undue burden on women seeking abortion, the state agreed to pay $1.6 million in attorney fees and legal costs to the law’s challengers.

There are many reasons why passing HF 809 is bad a policy choice that would harm the most vulnerable pregnant people in our state. An abortion would cost a woman on Medicaid nearly a third of her monthly family income. Denying her this necessary health care coverage has been shown to have little impact on abortion rates in states that do so. Two things happen instead: low‐income women divert money from living expenses such as rent, food, or utilities, and they access abortions later into their pregnancies after they scrape together the funds to pay for it.

But even if you disagree with the Minnesota Supreme Court and both sides in the Gomez case that this delay may cause some increase in the health risk to the pregnant woman and can impose pain, discomfort, or increased risks for women with medical complications, the bottom line is that Minnesota courts would stop this bill from taking effect. Passing this law would accomplish nothing for the Minnesota taxpayer but a large attorney fee bill.

Thank you for the opportunity to share this testimony.

To request citations to sources, please contact: lisa.stratton@genderjustice.us.