Opposition Brief — Dignity Health, dba Mercy San Juan Medical Center, Petitioner v. Evan Minton

Supreme Court briefJul 15, 2020

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No. 19-1135

IN THE

Supreme Court of the United States

DIGNITY HEALTH d/b/a MERCY SAN JUAN MEDICAL CENTER ,

Petitioner,

—v.—

EVAN MINTON ,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL, FIRST APPELLATE DISTRICT

BRIEF IN OPPOSITION

Christine Haskett

Lindsey Barnhart

Morgan E. Lewis

COVINGTON & BURLING LLP

Salesforce Tower

415 Mission Street, Suite 5400

San Francisco, CA 94105

Elizabeth O. Gill

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

NORTHERN CALIFORNIA

39 Drumm Street

San Francisco, CA 94111

Amanda C. Goad

Counsel of Record

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

SOUTHERN CALIFORNIA

1313 West 8th Street

Los Angeles, CA 90017

(213) 977-9500

agoad@aclusocal.org

Attorneys for Respondent

(Counsel continued on inside cover)

Louise Melling

Rose A. Saxe

James D. Esseks

Lindsey Kaley

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

Daniel Mach

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, DC 20005

QUESTIONS PRESENTED:

1. Is the denial of a demurrer, a nonfinal order

under California law, subject to this Court’s review on

a petition for certiorari, particularly where the lower

court’s decision did not resolve the critical factual

issues upon which the petition is based?

2. Do the free exercise, free speech, or free

association guarantees of the First Amendment

require dismissal at the pleading stage of a complaint

alleging that a hospital intentionally discriminated

against a transgender patient when it refused to allow

his doctor to perform a hysterectomy procedure that it

routinely

allows

doctors

perform

nontransgender individuals?

TABLE OF CONTENTS

QUESTIONS PRESENTED: .......................................i

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 4

REASONS FOR DENYING THE PETITION .........10

This Court lacks jurisdiction to review

the decision below because it is a nonfinal

judgment, and the federal questions Dignity

Health raises in the Petition were properly

not addressed below. .......................................... 10

A. There has been no “final judgment” by the

California courts on the federal questions

presented by Dignity

Health. .......................................................... 11

B. The federal questions on which

Dignity Health seeks review have not been

properly presented to the state courts

because they rest on evidence outside the

courts’ purview at the demurrer stage. ....... 16

II.

The decision below is a poor vehicle for

resolution of the federal questions Dignity

Health seeks to raise. ........................................ 18

A. The factual predicates for Dignity Health’s

petition are not in the record on review

of a decision on a demurrer. ......................... 19

iii

B. Resolution of the constitutional questions

Dignity Health raises may be unnecessary

to final disposition of this case. .................... 21

III. There is no conflict among the circuits

or state high courts, and the decision

below is correct................................................... 23

A. Application of the Unruh Act here

does not violate Dignity Health’s

free exercise rights. ...................................... 24

B. The court of appeal correctly held that

application of the Unruh Act here does

not violate Dignity Health’s free speech

or free association rights. ............................. 27

IV. There is no reason to hold this petition

for resolution of Fulton v. City of

Philadelphia. ..................................................... 30

CONCLUSION .......................................................... 31

APPENDIX

Appendix F:

First Amended Verified Complaint

for Declaratory and Injunctive Relief and

Statutory Damages in the Superior Court

of California for the County of

San Francisco ................................................... App. 28

TABLE OF AUTHORITIES

Page(s)

Cases

ABF Capital Corp. v. Berglass,

130 Cal. App. 4th 825 (2005) ............................... 18

Adams v. Robertson,

520 U.S. 83 (1997) .......................................... 17, 22

ASARCO Inc. v. Kadish,

490 U.S. 605 (1989) .............................................. 12

Buller v. Sutter Health,

160 Cal. App. 4th 981 (2008) ................................. 4

Camreta v. Greene,

563 U.S. 692 (2011) .............................................. 22

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) ............................ 12, 13, 14, 15

EEOC v. Catholic Univ. of Am.,

83 F.3d 455 (D.C. Cir. 1996) ................................ 27

Employment Div. v. Smith,

494 U.S. 872 (1990) ...................................... passim

Espinoza v. Montana Dep’t of Revenue,

No. 18-1195, __S. Ct. __, 2020 U.S.

LEXIS 3518, slip op. (June 30, 2020)

(Roberts, J.) .......................................................... 26

Flynt v. Ohio,

451 U.S. 619 (1981) .............................................. 15

Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46 (1989) ................................................ 13

Fulton v. City of Philadelphia,

No. 19-123 ...................................................... 30, 31

Heart of Atlanta Motel, Inc. v. United

States,

379 U.S. 241 (1964) .............................................. 24

Hishon v. King & Spalding,

467 U.S. 69 (1984) .......................................... 23, 28

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) .............................................. 26

Hudgens v. N.L.R.B.,

424 U.S. 507 (1976) .............................................. 22

Hurley v. Irish-American Gay, Lesbian

& Bisexual Group of Boston,

515 U.S. 557 (1995) ........................................ 28, 29

Local No. 438 Constr. & Gen. Laborers’

Union v. Curry,

371 U.S. 542 (1963) .............................................. 11

Masterpiece Cakeshop, Ltd. v. Colo.

Civil Rights Comm’n,

138 S. Ct. 1719 (2018) ................................ 9, 24, 27

Matal v. Tam,

137 S. Ct. 1744 (2017) .......................................... 22

National Institute of Family & Life

Advocates v. Becerra,

138 S. Ct. 2361 (2018) .......................................... 29

Newman v. Piggie Park Enters., Inc.,

390 U.S. 400 (1968) .............................................. 24

Nike, Inc. v. Kasky,

539 U.S. 654 (2003) ........................................ 11, 13

Our Lady of Guadalupe School v.

Morrissey-Berru,

No. 19-267, slip op. (July 8, 2020)

(Alito, J.) ............................................................... 26

Pope v. Atlantic Coast Line R.R. Co.,

345 U.S. 379 (1953) .................................. 11, 12, 16

Rumsfeld v. Forum for Acad. &

Institutional Rights, Inc.,

547 U.S. 47 (2006) ................................................ 28

Trinity Lutheran Church of Columbia,

Inc. v. Comer,

137 S. Ct. 2012 (2017) .................................... 25, 26

Webb v. Webb,

451 U.S. 493 (1981) .............................................. 17

Statutes

28 U.S.C. § 1257(a) ........................................ 10, 11, 12

RICO .......................................................................... 13

Unruh Civil Rights Act,

Cal. Civil Code § 51 ...................................... passim

vii

Constitutional Provisions

U.S. Const., amend. I ........................................ passim

INTRODUCTION

Dignity Health seeks this Court’s intervention at

the pleading stage, requesting review of the denial of

a demurrer, before any factual development of the

allegations in Evan Minton’s complaint, and before

any of Dignity Health’s contrary factual assertions

can even be considered, much less tested. This

procedural posture is sufficient to deny certiorari, for

two reasons. First, the Court lacks jurisdiction,

because the denial of a demurrer is not a final order,

and none of the exceptions to the rule barring review

of state court nonfinal orders applies here. And

second, even if jurisdiction existed, Dignity Health’s

petition rests on factual assertions that are not yet

part of the record, making this case an inappropriate

vehicle to resolve the questions Dignity Health

presents.

The explicit premise of the petition for certiorari is

that Dignity Health turned Mr. Minton away not

because he was transgender, as his complaint alleges,

but based on “the Ethical and Religious Directives

that govern Catholic health care institutions.” Pet. i.

Accordingly, the petition maintains that the decision

below “compel[s] a religiously affiliated hospital to

allow—and thereby endorse and be associated with—

medical procedures that violate its longstanding

deeply held religious beliefs.” Id.

Dignity Health’s characterization of the case,

however, misrepresents the nature of Mr. Minton’s

claim. Mr. Minton does not allege impermissible

discrimination because he was denied a hysterectomy

based on neutral religious directives. Rather, he

alleges he was intentionally discriminated against

because he is transgender. He alleges that he was

denied the same procedure that Dignity Health

permits many other nontransgender patients to

undergo, at the same facility, in a host of other,

comparable circumstances. At the demurrer stage,

those allegations must be accepted as true.

Dignity Health’s petition does not contend that it

has a constitutional right to discriminate against

patients because they are transgender, as Mr. Minton

alleged; it instead insists that it does not discriminate

against transgender patients. That is a factual

dispute that cannot be resolved at this stage of the

case.

Accordingly, the California Court of Appeal

decided this dispute “on narrower grounds” than the

petition pretends. Pet. App. 2. It merely held that

Mr. Minton had pleaded sufficient facts to support an

inference that Dignity Health intentionally

discriminated against him because he is transgender,

and in doing so denied him the “full and equal” access

to medical care that California law requires. Pet. App.

13. Dignity Health’s contrary assertions, it reasoned,

turned on facts that could not be considered, much less

resolved, on demurrer. The court below therefore

declined to address whether the Ethical and Religious

Directives for Catholic Health Care Services

(“Directives”)—which prohibit “direct sterilization”—

were applied in a discriminatory way, because their

application in this case cannot be considered on

demurrer.

The court of appeal expressly left open for

summary judgment or trial Dignity Health’s

contentions that it did not violate the Unruh Civil

Rights Act when it cancelled Mr. Minton’s

hysterectomy, either because it did not intentionally

discriminate against him based on his gender

identity, or because its offer of an alternative location

for his surgical procedure meant that Mr. Minton was

not denied the “full and equal” access that state law

requires. If, after development of the factual record,

Dignity Health prevails on either state-law-based

argument, there will be no need to address any

constitutional questions.

Because the central arguments in the petition—

which rely on Dignity Health’s characterization of the

facts, not Mr. Minton’s well-pleaded allegations—

have not been properly presented to or finally decided

by California’s courts, the petition does not meet

statutory requirements for this Court to exercise

jurisdiction. For similar reasons, even if there were

jurisdiction, this case is an inappropriate vehicle for

addressing the constitutional issues Dignity Health

raises. Resolution of those questions, and indeed

whether this case requires their resolution at all, will

depend on the development of facts regarding Dignity

Health’s policies and practices as well as its specific

dealings with Mr. Minton. At the demurrer stage,

Dignity Health’s version of the relevant, disputed

facts is not in the record.

In any event, Dignity Health does not argue that

the decision below, which holds only that the First

Amendment does not categorically preclude a claim

that a religiously affiliated hospital’s decision to

intentionally deny services to a patient because he is

transgender violates a public accommodations law,

conflicts with any other decision of a state supreme

court or federal court of appeals.

The Court should deny certiorari.

STATEMENT OF THE CASE

This case arises from the decision of Mercy San

Juan Medical Center (“Medical Center”), a

Sacramento-area hospital owned by Dignity Health,

to bar a surgeon from performing a hysterectomy on

Evan Minton, a transgender man who sought the

procedure as a medically necessary step in his gender

transition. This appeal arises from a demurrer to the

amended complaint, so the record is limited to the

allegations of that complaint, which must be accepted

as true. Buller v. Sutter Health, 160 Cal. App. 4th 981,

985-86 (2008).

As alleged in the complaint, Dignity Health

regularly permits surgeons—including Mr. Minton’s

surgeon,

Dr.

Lindsey

Dawson—to

perform

hysterectomies at the Medical Center. Supp. App. 36

¶ 20. Dr. Dawson therefore scheduled Mr. Minton’s

hysterectomy to be performed there. But after Mr.

Minton informed hospital staff that he was

transgender, the hospital administrators informed

Dr. Dawson that she would not be permitted to

perform Mr. Minton’s hysterectomy. Id. ¶¶ 21-22. The

Medical Center’s president, Brian Ivie, informed Dr.

Dawson that she would “never” be allowed to perform

a hysterectomy on Mr. Minton at the Medical Center

because it was scheduled as part of a course of

treatment for gender dysphoria, as opposed to any

other medical diagnosis. Id. ¶¶ 23-24. Gender

dysphoria is “a medical condition unique to

individuals whose gender identity does not conform to

the sex they were assigned at birth,” id. at 43 ¶ 48,

and Mr. Minton’s hysterectomy was medically

necessary to treat his gender dysphoria. Id. at 35 ¶ 18.

Yet Dignity Health refused to permit Mr. Minton to

obtain this medically necessary care at the Medical

Center, despite routinely allowing surgeons to

perform hysterectomies for nontransgender patients

there, including for “chronic pelvic pain and uterine

fibroids.” Id. at 42 ¶ 40.

When the Medical Center initially informed Dr.

Dawson that it had unilaterally cancelled

Mr. Minton’s procedure, it offered no other

arrangement. Only after Dr. Dawson and Mr. Minton

undertook significant efforts to bring media and

political attention to Dignity Health’s actions, and

after Mr. Minton’s attorney contacted the Medical

Center, did Mr. Ivie offer an alternative location for

the hysterectomy, at a Methodist hospital also owned

by Dignity Health. Id. at 38-41 ¶¶ 28-35. Mr. Minton

was able to get the hysterectomy three days later, but

experienced “great anxiety and grief” at being initially

turned away for a time-sensitive procedure because he

was transgender. Id. at 37 ¶ 26; see also id. at 42 ¶ 41.

Mr. Minton sued Dignity Health for violating the

Unruh Civil Rights Act, California’s public

accommodations law. Specifically, Mr. Minton alleged

that Dignity Health intentionally denied him “full and

equal access” to the Medical Center because he is

transgender. Id. at 43-44 ¶¶ 44-53; see also Cal. Civil

Code § 51.

Dignity Health demurred, arguing that (1) it did

not discriminate against Mr. Minton because of his

transgender status, but merely applied a neutral and

religiously based policy, the Directives promulgated

by the United States Conference of Catholic Bishops,

to disallow his surgery; (2) it did not deny Mr. Minton

“full and equal” access to care because he later was

able to obtain the hysterectomy at a different hospital

also owned by Dignity Health but not subject to the

Directives; and (3) compelling it to allow Dr. Dawson

to perform the procedure at the Medical Center in

violation of the Directives would contravene Dignity

Health’s federal and state free exercise, free speech,

and free association rights. ROA 162-184. 1

The trial court sustained Dignity Health’s

demurrer as to the amended complaint on state law

grounds. Pet. App. 21. The court assumed, based on

the allegations in the complaint, that Dignity Health’s

decision to cancel Mr. Minton’s procedure was

substantially motivated by his gender identity. Id. at

22. But it concluded that because Mr. Minton

ultimately obtained his hysterectomy three days later,

he had not been deprived of “full and equal access” to

the care at issue, and therefore had not alleged a

violation of the Unruh Act. Id. at 21-22. Because the

trial court concluded that Dignity Health had not

violated the Unruh Act, it did not address Dignity

Health’s constitutional defenses. Id. at 20-22.

The California Court of Appeal reversed. It

acknowledged that “the parties and several amici

“ROA” citations refer to the Record on Appeal before the

California Court of Appeal.

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,” but concluded “that

the present appeal may be resolved on narrower

grounds.” Id. at 2. Emphasizing that all allegations of

the complaint must be accepted as true at the

demurrer stage, it concluded that Mr. Minton had

alleged sufficient facts to support an inference that

Dignity Health intentionally discriminated against

him because of his gender identity in violation of the

Unruh Act. In particular, the court noted that he had

alleged that hysterectomies for nontransgender

patients were routinely performed in the Medical

Center, and that the Medical Center cancelled his

appointment and barred his surgery only after

learning that he was transgender. Id. at 3-4. The court

found that “[d]enying a procedure as treatment for a

condition that affects only transgender persons

[gender dysphoria] supports an inference that Dignity

Health discriminated against Minton based on his

gender identity.” Id. at 10.

The court rejected each of the arguments Dignity

Health made in support of affirming the demurrer.

First, it addressed Dignity Health’s claim that it had

not actually discriminated against Mr. Minton

because he was transgender, but had merely applied

neutral religious Directives barring “[d]irect

sterilization . . . ,whether permanent or temporary.”

Pet. App. 9. The court of appeal acknowledged that

neutral practices that merely have a disparate impact

on a protected group do not violate the Unruh Act. Id.

at 8-9. But it concluded that “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” because none of those

facts appear in the complaint. Id. at 10. Moreover, if

Dignity Health sought to defend on summary

judgment or at trial by citing its reliance on the

Directives, the court noted, “Minton may attempt to

establish that the hospital applied the Directives in a

discriminatory manner.” Id. At the demurrer stage,

however, because Dignity Health’s invocation of the

Directives was “contrary to the allegations in the

complaint,” the defense was “not susceptible to

resolution by demurrer.” Id. at 10-11.

Dignity Health argued in addition that, even if its

actions were motivated by Mr. Minton’s gender

identity, it did not violate the Unruh Act because, by

providing an alternative location for the surgery, it

did not deny him “full and equal access” to medical

care. The court of appeal held that, on the allegations

of the complaint, Dignity Health initially denied Mr.

Minton any service at all, and only offered an

alternative in response to subsequent media and

political pressure. Id. at 13. While this belated offer

may have “substantially reduced the impact of the

initial denial of access,” the court reasoned, it “did not

undo the fact that the initial withholding of facilities

was absolute, unqualified by an explanation that

equivalent facilities would be provided at an

alternative location.” Id. “[I]t cannot constitute full

equality under the Unruh Act to cancel [Mr. Minton’s]

procedure for a discriminatory purpose, wait to see if

his doctor complains, and only then attempt to

reschedule the procedure at a different hospital.” Id.

at 14.

The court also rejected Dignity Health’s free

exercise and free speech arguments, emphasizing that

“upholding Minton’s claim does not compel Dignity

Health to violate its religious principles if it can

provide all persons with full and equal medical care at

comparable facilities not subject to the same religious

restrictions.” Id. at 15. But to the extent that Dignity

Health had discriminated against Mr. Minton

because of his gender identity, and had not provided a

comparable service elsewhere, the court concluded

that its free exercise claim failed because the state has

a compelling interest in barring such discrimination,

and the prohibition was narrowly tailored to serve

that end. It cited this Court’s dictate in Masterpiece

Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S.

Ct. 1719, 1727 (2018), that religious 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.” Pet.

App. 15. And it held that requiring a hospital to allow

a doctor to perform a medical procedure did not

compel speech in violation of the First Amendment.

Id. at 15-16.

The California Supreme Court summarily denied

Dignity Health’s petition for review. Id. at 19.

REASONS FOR DENYING THE PETITION

This Court lacks jurisdiction to review the

decision below because it is a nonfinal

judgment, and the federal questions

Dignity Health raises in the Petition were

properly not addressed below.

This Court lacks jurisdiction to hear this petition

both because the decision below is a nonfinal

judgment and because the federal claims that Dignity

Health seeks to present here were appropriately not

resolved in the state courts, as they rest on evidence

the court cannot consider at the demurrer stage.

This Court’s jurisdiction over state court decisions

is governed by 28 U.S.C. § 1257(a), which states in

pertinent part:

Final judgments or decrees rendered by

the highest court of a State in which a

decision could be had, may be reviewed

by the Supreme Court by writ of

certiorari . . . where the validity of a

statute of any State is drawn in question

on the ground of its being repugnant to

the Constitution, treaties, or laws of the

United States.

The Court has interpreted this statute to require

both that the decision to be reviewed is a “final

decision,” and that the federal questions to be

reviewed have been properly presented to or

addressed by the highest state court. Neither

requirement is met here.

There has been no “final judgment”

by the California courts on the

federal questions presented by

Dignity Health.

This Court’s appellate jurisdiction to review state

court decisions is limited to “final judgments . . .

rendered by the highest court of a State.” 28 U.S.C.

§ 1257(a); see also Nike, Inc. v. Kasky, 539 U.S. 654,

658 (2003) (“Congress has granted this Court

appellate jurisdiction with respect to state litigation

only after the highest state court in which judgment

could be had has rendered a final judgment or

decree.”). This statutory dictate serves important

purposes of federalism by minimizing premature

federal intervention in state legal processes. It also

ensures that this Court does not unnecessarily reach

constitutional questions when cases may yet be

resolved on state law grounds.

Dignity Health concedes, as it must, that this is a

nonfinal judgment. Pet. 5. As this Court has stated,

“[o]rdinarily, then, the overruling of a demurrer, like

the issuance of a temporary injunction, is not a ‘final’

judgment.” Pope v. Atlantic Coast Line R.R. Co., 345

U.S. 379, 382 (1953); see also Local No. 438 Constr. &

Gen. Laborers’ Union v. Curry, 371 U.S. 542, 551

(1963) (stating that “ordinarily the overruling of a

demurrer is not a final judgment”); cf. Nike, 539 U.S.

at 654-60 (dismissing writ of certiorari as

improvidently granted where petitioner relied on

First Amendment defense but facts central to the

defense had not been developed at demurrer stage).

Further, this case does not fit any of the four narrow

categories of cases this Court has identified that may

be treated as final under Section 1257(a) “without

awaiting the completion of the additional proceedings

anticipated in the lower state courts.” Cox Broad.

Corp. v. Cohn, 420 U.S. 469, 477 (1975). Indeed,

Dignity Health does not even assert that any of the

first three exceptions applies, and invokes only the

fourth.

The first exception applies where, despite the

existence of further state proceedings, “the federal

issue is conclusive or the outcome of further

proceedings preordained” with only “mechanical entry

of judgment” remaining. Cox, 420 U.S. at 479; Pope,

345 U.S. at 382. That is plainly not the case here,

where Dignity Health’s defenses that it merely

applied neutral religious Directives, and that it

provided an adequate alternative location, have not

been developed or adjudicated.

The second exception applies where “the federal

issue, finally decided by the highest court in the State,

will survive and require decision regardless of the

outcome of future state-court proceedings.” Cox, 420

U.S. at 480. This exception does not apply because the

decision below expressly rested “on narrower

grounds,” and did not address, much less resolve, the

constitutional issue Dignity Health seeks to raise

here: namely, whether state law can compel it to

contravene its allegedly neutral religious Directives.

See id.; ASARCO Inc. v. Kadish, 490 U.S. 605, 612

(1989). The courts below have not yet even considered

the Directives or their role in the events alleged.

The third exception governs “where the federal

claim has been finally decided, with further

proceedings on the merits in the state courts to come,

but in which later review of the federal issue cannot

be had, whatever the ultimate outcome of the case.”

Cox, 420 U.S. at 481. That is not the case here, as

Dignity Health will be able to pursue its First

Amendment claims once the Directives and their role

in the dispute are properly presented and adjudicated.

All the court below held was that the Directives could

not be considered on a demurrer. See Pet. App. 15.

The only exception Dignity Health claims is

applicable here is the fourth one, but it cannot satisfy

that exception’s requirements either. Pet. 5; Cox, 420

U.S. at 482-83. This exception requires three

showings, all of which must be satisfied: that (1) “the

federal issue has been finally decided in the state

courts with further proceedings pending in which the

party seeking review might prevail on nonfederal

grounds,” (2) “reversal of the state court on the federal

issue would be preclusive of any further litigation on

the relevant cause of action,” and (3) “refusal

immediately to review the state-court decision might

seriously erode federal policy.” Nike, 539 U.S. at 65859 (Stevens, J., concurring) (quoting Cox, 420 U.S. at

482-83) (internal quotation marks omitted); see also

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 55-56

(1989) (discussing federal policy implications under

Cox of a facial challenge to the validity of Indiana’s

RICO statute).

This case fails all three prongs. First, the federal

issues Dignity Health seeks to raise here were not

decided in the court of appeal, because, as the court

explained, the Directives and their application—

including the question whether they were neutrally

applied—were not properly before it on demurrer. Pet.

App. 10. Second, reversing the state court on the

question presented would not be “preclusive of any

further litigation,” because there is no “state court”

decision “on the federal issue” to be “revers[ed]” here.

Id. at 5. The courts below have not yet adjudicated

whether Dignity Health’s denial of medically

necessary care was in fact motivated by the

Directives, whether the Directives were neutrally

applied, or whether the denial was motivated by

gender identity discrimination, much less whether

enforcing the Unruh Act against Dignity Health in

some still-unknown circumstances violates the First

Amendment.

Third,

allowing

Mr.

Minton’s

discrimination suit to proceed to discovery when the

complaint’s allegations supported an inference of

impermissible discrimination, while acknowledging

that upon further factual development Dignity Health

may avoid any liability whatsoever, does not

“seriously erode federal policy” such that it would be

“intolerable to leave unanswered” the questions

Dignity Health seeks to resolve prematurely here.

Cox, 420 U.S. at 483-85 (quoting Miami Herald Publ’g

v. Tornillo, 418 U.S. 241, 247 n.6 (1974)). In short, if

Dignity Health’s rendition of the facts is borne out,

and if it is nonetheless found liable, any constitutional

questions can be fully and fairly adjudicated at that

point. But it is possible that no Unruh Act violation

will be found, in which case no federal question will

need to be reached.

Dignity Health’s contentions regarding its

provision of an alternative location for Mr. Minton’s

surgery further underscore the nonfinal character of

the judgment below. Dignity Health’s petition

suggests that the court of appeal ruled that the offer

of an alternative location was insufficient to afford

“full and equal” treatment to Mr. Minton. Pet. 13, 2830. But the court instead held that, on the allegations

of the complaint, it violates state law to deny

treatment because of transgender status without

offering an alternative location, and to make such an

offer only after an initial cancellation that was

“absolute.” Pet. App. 11-16. Dignity Health does not

contend that the court of appeal’s holding that one

must offer such an alternative in the first place

violates its religious commitments. And to the extent

it disputes the facts concerning the timing of the offer

of this alternative, that issue remains open for

adjudication once Dignity Health presents its version

of the facts.

The final judgment rule is a statutory constraint

imposed by Congress on this Court’s jurisdiction. It is

therefore important to keep the exceptions to the rule

strictly circumscribed. An expansive construction of

the exceptions would swallow the rule and would

contradict the statute’s plain meaning. See Flynt v.

Ohio, 451 U.S. 619, 622-23 (1981) (where petitioner

sought to raise First Amendment defense to obscenity

prosecution, resolution “can await final judgment

without any adverse effect upon important federal

interests. A contrary conclusion would permit the

fourth [Cox] exception to swallow the rule. Any federal

issue finally decided on an interlocutory appeal in the

state courts would qualify for immediate review.”).

And as noted above, the “final judgment” rule serves

important

federalism

interests

and

avoids

unnecessary constitutional adjudication.

Here, the state courts have not reached a final

judgment on the federal questions presented by

Dignity Health; they have declined to address them

because they are premature. Indeed, it is unclear

whether these federal questions will ever need to be

decided, because the state courts have not even

reached a final judgment on the state law defenses

raised by Dignity Health. If Dignity Health can show

that it did not discriminate against Mr. Minton

because he is transgender, or that it provided him

with an alternative that constituted “full and equal”

access, it may prevail under the Unruh Act.

Accordingly, granting review is barred by the final

judgment rule, without which “litigants would be free

to come [to the Supreme Court] and seek a decision on

federal questions which, after later proceedings,

might subsequently prove to be unnecessary and

irrelevant to a complete disposition of the litigation.”

Pope, 345 U.S. at 381–82.

The federal questions on which

Dignity Health seeks review have

not been properly presented to the

state courts because they rest on

evidence

outside

the

courts’

purview at the demurrer stage.

The predicate for Dignity Health’s petition is that

it turned away Mr. Minton based on the neutral

application of its religious Directives. Dignity Health

references the Directives more than twenty times in

its petition, including in the Questions Presented, the

Statement of the Case, and the Reasons for Granting

the Petition. Dignity Health simply denies Mr.

Minton’s allegation that it turned him away because

he is transgender, asserting that it “does not

discriminate against any category of patients,

including transgender individuals.” Pet. 1.

But the question whether it violates the First

Amendment to require Dignity Health to provide

services that contravene its religious Directives is not

properly presented here because, as the court of

appeal explained, the role those Directives played in

Mr. Minton’s denial of treatment is beyond the four

corners of the complaint, and therefore cannot be

resolved on demurrer. Pet. App. 10. Even if the

Directives could be treated as in play at this stage,

there is still the question whether they were

neutrally, or discriminatorily, applied. For that

reason, the court below did not address the issue; it

remains to be addressed once Dignity Health makes a

record and the facts are developed.

With limited exceptions, this Court “will not

consider a petitioner’s federal claim unless it was

either addressed by, or properly presented to, the

state court that rendered the decision [the Supreme

Court has] been asked to review.” Adams v. Robertson,

520 U.S. 83, 86 (1997). A petitioner has not properly

raised a federal question where the question was not

raised in accordance with a state’s laws of civil

procedure. Webb v. Webb, 451 U.S. 493, 498 n.4 (1981).

The California Court of Appeal was not properly

presented with the federal questions on which Dignity

Health now seeks review. Addressing these questions

would have required the court below to assume facts

not included in Mr. Minton’s complaint, which

California courts cannot do on demurrer. See, e.g.,

ABF Capital Corp. v. Berglass, 130 Cal. App. 4th 825,

833–34 (2005) (citing Moore v. Conliffe, 7 Cal. 4th 634,

638 (1994); Montclair Parkowners Ass’n v. City of

Montclair, 76 Cal. App. 4th 784, 790 (1999)) (“When

considering a demurrer, the trial court must accept as

true all material facts pleaded in the complaint and

those arising by reasonable implication.”). As

explained by the court of appeal, the question whether

Dignity Health canceled Mr. Minton’s surgery

because of its religious beliefs, as expressed in the

Directives, “is not suitable for resolution by

demurrer,” and so could not have been addressed by

the ruling below. Pet. App. 10.

Accordingly, both because the judgment below is

not final, and because the factual predicate for Dignity

Health’s questions presented is not properly before

the Court, this Court lacks jurisdiction, and the

petition should be denied on that ground alone.

II.

The decision below is a poor vehicle for

resolution of the federal questions Dignity

Health seeks to raise.

For many of the same reasons that the Court lacks

jurisdiction, this case would be a poor vehicle even if

jurisdiction existed. Dignity Health’s petition rests on

the premise that California law has compelled it to

provide hysterectomies in violation of neutrally

applied religious Directives. But as noted above, the

Directives and their role in Mr. Minton’s treatment

have not been tested and are not properly before the

Court. And once the facts are developed, this case

could well be resolved on state law grounds, making

any constitutional questions unnecessary to reach. In

any event, should the constitutional questions Dignity

Health seeks to present ever need to be addressed in

this case, they are best resolved on the basis of a

factual record, which is entirely lacking here.

The factual predicates for Dignity

Health’s petition are not in the

record on review of a decision on a

demurrer.

The petition rests on the claim that the California

Court of Appeal decision “compel[s] a religiously

affiliated hospital to allow medical procedures that

violate its longstanding, deeply held religious beliefs,”

Pet. i. But the court of appeal required nothing of the

sort. It held only that the complaint alleged sufficient

facts to support an inference of intentional genderidentity discrimination, and Dignity Health does not

assert a religious belief in such discrimination. The

court below explicitly noted that the issue of the

application of the religious Directives could not be

adjudicated on a demurrer because it is beyond the

allegations of the complaint. Pet. App. 10-11 (“Dignity

Health’s contention that its action was motivated by

adherence to neutral Directives . . . contrary to the

allegations in the complaint, is not susceptible to

resolution by demurrer.”). 2 For that same reason, the

2 The First Amended Complaint does not even mention the

Directives except in a quote from an after-the-fact Dignity

Health press release. Supp. App. 38-39 ¶ 31. While the superior

court took judicial notice of the existence of the Directives, Pet.

App. 22 and ROA 432, the question of what role the Directives

actually played in Dignity Health’s decision to cancel

Mr. Minton’s surgery has not been factually developed, much

less decided by the state courts.

decision below in no way requires Dignity Health to

violate the Directives. Because the Directives are not

properly before the Court, this case is a poor vehicle

to address their import.

The sole holding of the court of appeal—that

allegations

that

the

hospital

intentionally

discriminated against a patient because he is

transgender state a claim under the Unruh Act—is

not a holding against which Dignity Health seeks to

present a First Amendment defense. Dignity Health

does not claim it has a religiously based right to

intentionally discriminate against patients because

they are transgender. On the contrary, it contends

that it does not discriminate on that basis. See Pet. 8

(“Mercy provides compassionate care to all persons

without discrimination”); id. at 7 (“Mercy welcomes

transgender patients in its facilities every day and

offers those patients any procedure or service that is

not prohibited by Catholic religious doctrine.”). But it

is beyond dispute that Dignity Health cannot prevail

on a demurrer simply by denying the well-pleaded

factual allegations in Mr. Minton’s complaint.

Accordingly, this case is a poor vehicle for deciding the

scope of First Amendment defenses to discrimination

claims. 3

Dignity Health also argues that it provided Mr.

Minton “full and equal” access to care by rescheduling

his surgery at a different hospital. See Pet. 2, 9-10.

3 In fact, the court of appeal made clear that neutral practices

having merely a “disparate impact” on protected groups do not

violate the Unruh Act. Pet. App. 8-9. But it held that on

demurrer, it could not determine whether the Directives were in

fact neutral, and neutrally applied. Id.

But that argument is likewise contradicted by the

complaint, which alleges that Dignity Health’s initial

denial of Mr. Minton’s hysterectomy offered no

alternative, and that the other hospital became

available only after Mr. Minton had brought media

and political pressure to bear. The court of appeal held

that Mr. Minton’s allegation supported a claim that

Dignity Health’s initial denial violated the Unruh Act.

Pet. App. 12-14. But it noted that “upholding Minton’s

claim does not compel Dignity Health to violate its

religious principles if it can provide all persons with

full and equal medical care at comparable facilities

not subject to the same religious restrictions.” Id. at

15; id. at 2 (decision did not “determin[e] the right of

Dignity Health to provide its services in such cases at

alternative facilities, as it claims to have done here”).

The challenged decision therefore does not

address, much less settle, the constitutional questions

Dignity Health seeks to raise here. As the court of

appeal made clear, Dignity Health will have a full

opportunity to attempt to show that it did not violate

state law and to raise its constitutional and any other

defenses at summary judgment or trial.

Resolution of the constitutional

questions Dignity Health raises may

be unnecessary to final disposition

of this case.

At this point in the case, it is not clear whether the

federal questions Dignity Health raises will ever need

to be decided in this case. As the court of appeal noted,

Dignity Health remains free to introduce evidence

regarding its Directives, their application, and

Dignity Health’s alleged offer of a substitute location

for Mr. Minton’s surgery. The court also explained

that, depending on how those factual issues are

resolved, there may be no Unruh Act violation. If so,

there would be no need to address the constitutional

questions Dignity Health seeks to raise now.

“It is a well-established principle that

constitutional questions should not be decided

unnecessarily.” Hudgens v. N.L.R.B., 424 U.S. 507,

531 (1976); see also Matal v. Tam, 137 S. Ct. 1744,

1755 (2017) (“[courts] ought not to pass on questions

of constitutionality . . . unless such adjudication is

unavoidable”) (citations and internal quotation marks

omitted); Camreta v. Greene, 563 U.S. 692, 705 (2011)

(“[A] longstanding principle of judicial restraint

requires that courts avoid reaching constitutional

questions in advance of the necessity of deciding

them.”) (citations and internal quotation marks

omitted); Adams v. Robertson, 520 U.S. 83, 90-91

(1997) (discussing Court’s interests in avoiding

“unnecessary

adjudication”

constitutional

questions as well as “promoting the creation of an

adequate factual and legal record”). Accordingly, this

Court should not agree to evaluate Dignity Health’s

constitutional defenses at this early stage of litigation,

when their consideration may not ever prove

necessary.

Moreover, resolution of any constitutional

questions should await a full record. Their resolution

might well be different if the courts below conclude

that Dignity Health turned Mr. Minton away because

he is transgender, as alleged, or based on a set of

neutral religious Directives, as Dignity Health

contends. The constitutional questions might also be

affected by how the Directives were applied, and the

chronology and details regarding Dignity Health’s

offer of an alternative location for the surgery. Until

those facts are developed, this case is not an

appropriate vehicle to resolve the questions Dignity

Health prematurely raises.

III.

There is no conflict among the circuits or

state high courts, and the decision below

is correct.

Dignity Health does not argue that the decision

below creates a conflict in the federal circuits or with

other state high courts. Instead, it argues that the

decision presents important federal questions, and

that the decision is at odds with various Supreme

Court precedents. But the cases it cites are all clearly

inapposite, and the decision below correctly concluded

that applying a neutral and generally applicable

nondiscrimination law to a religious entity that has

intentionally discriminated against a patient because

he is transgender does not violate the First

Amendment.

The Unruh Act is a neutral law of general

applicability that neither targets religious activity,

nor requires Dignity Health to express any statemandated message. This Court has never accepted

the argument that an evenly applied, neutral

nondiscrimination law violates the First Amendment,

and has stated that discriminatory conduct by

business entities “has never been accorded affirmative

constitutional protections.” Hishon v. King &

Spalding, 467 U.S. 69, 78 (1984) (internal quotation

marks omitted); see also Newman v. Piggie Park

Enters., Inc., 390 U.S. 400, 402 n.5 (1968); Heart of

Atlanta Motel, Inc. v. United States, 379 U.S. 241,

258–60 (1964). At this juncture, the court of appeal

has held only that the First Amendment does not give

a religiously affiliated hospital general license to

discriminate intentionally against patients because

they are transgender. That decision is fully consistent

with this Court’s precedents.

Application of the Unruh Act here

does not violate Dignity Health’s

free exercise rights.

The court of appeal correctly held that a neutral

and generally applicable antidiscrimination law does

not violate the Free Exercise Clause merely because it

is applied to a religiously affiliated business. As this

Court explained in Employment Div. v. Smith, 494

U.S. 872 (1990), “the right of free exercise does not

relieve an individual of the obligation to comply with

a valid and neutral law of general applicability on the

ground that the law proscribes (or prescribes) conduct

that [their] religion prescribes (or proscribes).” Id. at

879 (internal quotation marks omitted). And in

Masterpiece Cakeshop, the Court reaffirmed that

religious objections do not permit businesses to evade

such nondiscrimination requirements. Masterpiece

Cakeshop, Ltd., 138 S. Ct. at 1727-28.

Dignity Health does not contest that the Unruh

Act is both neutral and generally applicable, nor does

it argue that the Unruh Act targets religiously

affiliated businesses or treats them differently from

secular businesses. Instead, Dignity Health seeks a

broad categorical exemption from a public

accommodations law of general applicability. Nothing

in this Court’s precedents supports such an

extraordinary exemption.

Dignity Health argues that the doctrine governing

neutral and generally applicable laws announced in

Smith should not apply because the burden it suffers

is “severe” and inherent to the relief Mr. Minton

seeks, not merely “incidental.” Pet. 28, 21. Smith’s

reference to neutral laws that “incidentally” burden

religion did not, however, turn on the size of the

burden, but rather on whether the statute in question

is targeted at religion, thereby imposing a “direct”

burden, or is neutral as to religion, and therefore has

only the “incidental” effect of burdening religion. The

Unruh Act, like the drug-use law in Smith, affects

religion only incidentally, not directly.

Dignity Health also suggests that Smith may

apply differently to individuals and institutions. But

there is no support for that proposition in Smith itself

or its progeny. Institutions, like individuals, are

obligated to abide by neutral and generally applicable

laws.

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017), is also plainly

distinguishable. There, a state policy “categorically

disqualif[ied]” churches and other religious entities

from participating in a state program subsidizing

installation of safe playground surfaces. Id. at 2017.

This Court held that the program violated the First

Amendment because it excluded churches from a

public benefit solely because of their religious status.

Id. at 2021; see also Espinoza v. Montana Dep’t of

Revenue, No. 18-1195, __S. Ct. __, 2020 U.S. LEXIS

3518, slip op. at 6-7, 12 (June 30, 2020) (Roberts, J.)

(finding free exercise violation where state

scholarship program excluded religious schools

because of their “status”). Here, by contrast, Dignity

Health does not seek the same treatment as other

public accommodations, but a special exemption from

a generally applicable law. As the Court explained in

Trinity Lutheran, “when this Court has rejected free

exercise challenges, the laws in question have been

neutral and generally applicable without regard to

religion.” Id. at 2020. The Unruh Act plainly fits that

description.

The ministerial exception cases are even further

afield. They concern the authority of a church to

choose its own leaders as a matter of church

governance; they have nothing to do with a right to

discriminate against members of the public as

customers. See, e.g., Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 190

(2012) (distinguishing permissible “government

regulation of only outward physical acts” as in Smith

from ministerial exception cases that “concern[]

government interference with an internal church

decision that affects the faith and mission of the

church itself”); Our Lady of Guadalupe School v.

Morrissey-Berru, No. 19-267, slip op. at 10-11 (July 8,

2020) (Alito, J.) (ministerial exception “does not mean

that religious institutions enjoy a general immunity

from secular laws, but it does protect their autonomy

with respect to internal management decisions that

are essential to the institution’s central mission, …

[including] the selection of individuals who play

certain key roles”); EEOC v. Catholic Univ. of Am., 83

F.3d 455, 462 (D.C. Cir. 1996) (“the burden on free

exercise that is addressed by the ministerial exception

is of a fundamentally different character from that at

issue in Smith”).

For similar reasons, this case has no resemblance

to clergy members being forced to perform a religious

ritual that is contrary to their faith. Masterpiece

Cakeshop, Ltd., 138 S. Ct. at 1727. Indeed, as the

Court warned in Masterpiece Cakeshop, Ltd. “if that

exception were not confined, then a long list of persons

who provide goods and services” might refuse to do so

for same-sex couples or, as here, transgender

individuals, “thus resulting in a community-wide

stigma inconsistent with the history and dynamics of

civil rights laws that ensure equal access to goods,

services, and public accommodations.” Id.

The court of appeal correctly held

that application of the Unruh Act

here does not violate Dignity

Health’s free speech or free

association rights.

The court of appeal also correctly held that

requiring Dignity Health not to deny “full and equal”

access to health services on the basis of gender

identity, without more, does not violate Dignity

Health’s free speech or free association rights. Here,

too, there is no conflict in the circuits, and the decision

below is correct.

Dignity Health argues that requiring it not to

discriminate against Mr. Minton, by allowing his

surgeon to perform a hysterectomy that it routinely

permits other doctors to perform, would compel it to

speak. But affording a private doctor access to a

hospital to perform a medical procedure does not

constitute speech under any conceivable definition of

the term. And in any event, the Unruh Act is a

regulation of business conduct without regard to what

that conduct communicates, and therefore even if it

incidentally regulated speech, it would at most be

subject to intermediate scrutiny, which it clearly

survives.

This Court has uniformly rejected businesses’ free

speech challenges to laws barring discrimination,

even where those businesses dealt in expressive goods

or services. See, e.g., Hishon, 467 U.S. at 78. Public

accommodation laws do not “target speech or

discriminate on the basis of its content, the focal point

of [their] prohibition being rather on the act of

discriminating against individuals in the provision of

publicly available goods, privileges, and services on

the proscribed grounds.” Hurley v. Irish-American

Gay, Lesbian & Bisexual Group of Boston, 515 U.S.

557, 572 (1995). And just as it did not violate law

schools’ First Amendment rights of speech or

association

require

them

permit

nondiscriminatory access to military recruiters,

despite the schools’ disagreement with the military’s

hiring policies, so, too, requiring Dignity Health to

provide nondiscriminatory access to a doctor to

perform a procedure the hospital permits for

nontransgender patients does not violate its First

Amendment rights. Rumsfeld v. Forum for Acad. &

Institutional Rights, Inc., 547 U.S. 47 (2006).

Dignity Health’s reliance on National Institute of

Family & Life Advocates v. Becerra, 138 S. Ct. 2361

(2018) (“NIFLA”), is misplaced. In NIFLA, the

challenged law required licensed clinics to “provide a

government-drafted script about the availability of

state-sponsored services.” Id. at 2371. The Unruh Act,

by contrast, does not require Dignity Health to say

anything, much less to read a particular script; the

statute merely requires it to provide “full and equal”

access to the services it voluntarily chooses to provide

to the public, without discriminating on the basis of

gender identity. The Act regulates Dignity Health’s

conduct, not its speech, and does not “compel[]

individuals to speak a particular message” or to

“alter[] the content of [their] speech.” Id. (internal

quotation marks omitted).

Hurley is also plainly distinguishable. That case

involved a “peculiar” application of a public

accommodation law to a privately organized parade

that this Court emphasized was “inherent[ly]

expressive[].” 515 U.S. at 568, 572. The application

was impermissible because, instead of regulating

business conduct with only an incidental effect on

expression, it regulated nothing but expression—the

content of the private parade sponsor’s speech. Id. at

573. In fact, as noted above, Hurley itself insisted that

the standard application of public accommodation

laws to the business conduct involved here is

constitutional. Id. at 578.

Nothing in this Court’s jurisprudence calls into

question the limited holding of the court of appeal that

applying a neutral and generally applicable law

prohibiting intentional discrimination to a religiously

affiliated business does not, without more, violate the

First Amendment.

IV.

There is no reason to hold this petition

for resolution of Fulton v. City of

Philadelphia.

There is no reason to hold this petition until the

Court has decided Fulton v. City of Philadelphia, No.

19-123, as Dignity Health urges. First, as elaborated

above, the preliminary posture of this dispute renders

it not reviewable at this stage. Supra Section I. And

even if the case were reviewable, it provides an

inappropriate vehicle to resolve the questions Dignity

Health presents, because they rest on facts not yet in

the record and wholly untested. Supra Section II.

These grounds for denying certiorari do not turn in

any way on the issues to be considered in Fulton.

Dignity Health nonetheless contends that this case

should be held pending disposition of Fulton because

the result in both cases depends on the Court’s

interpretation of Employment Division v. Smith. Pet.

2-4, 18-23. But the California Court of Appeal did not

rely on Smith in overruling Dignity Health’s

demurrer. Cf. Pet. App. 8-16. Rather, it merely held

the First Amendment does not bar assessment of

whether the hospital turned Mr. Minton away for

being transgender in violation of state law. Id. 14-16.

Allowing this case to move forward to determine

whether or not state law was violated does not

infringe Dignity Health’s First Amendment rights

under any standard. And even if the California courts

ultimately do find that Dignity Health violated the

Unruh Act, and if Dignity Health can show that its

First Amendment rights are implicated by that

finding, the Unruh Act satisfies strict scrutiny

because its ban on intentional discrimination by

businesses that choose to serve the public is narrowly

tailored to further California’s compelling interest in

ensuring that all of its residents have full and equal

access to the market, including the market for health

care. Thus, even if this Court should elect to revisit

the Smith standard in Fulton and to apply some

version of strict scrutiny, it would not affect the

outcome here. Moreover, the Fulton case may be

resolved without disrupting the holding of Smith. See

Brief for Petitioners at 22-30, Fulton v. City of

Philadelphia, No. 19-123 (May 27, 2020) (arguing

“Smith never should have applied to this case”).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

Amanda C. Goad

Counsel of Record

ACLU FOUNDATION OF

SOUTHERN CALIFORNIA

1313 West Eighth Street

Los Angeles, CA 90017

(213) 977-9500

agoad@aclusocal.org

David D. Cole

Daniel Mach

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, DC 20005

Lindsey Kaley

Rose A. Saxe

James D. Esseks

Louise Melling

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

Christine Haskett

Lindsey Barnhart

Morgan E. Lewis

COVINGTON & BURLING

LLP

Salesforce Tower

415 Mission Street,

Suite 5400

San Francisco, CA 94105

Elizabeth O. Gill

ACLU FOUNDATION OF

NORTHERN CALIFORNIA

39 Drumm Street

San Francisco, CA 94111

Counsel for Plaintiff-Respondent Evan Minton

SUPPLEMENTAL APPENDIX

APPENDIX TABLE OF CONTENTS

Appendix F First Amended Verified Complaint

for Declaratory and Injunctive Relief

and Statutory Damages in the Superior

Court of California for the County of

San Francisco

(September 19, 2017) ................. App. 28

App. 28

APPENDIX F

SUPERIOR COURT OF THE STATE OF

CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

EVAN MINTON

Plaintiff,

DIGNITY HEALTH;

DIGNITY HEALTH d/b/a

MERCY SAN JUAN

MEDICAL CENTER

Case No. CGC 17558259

Defendant.

FIRST AMENDED VERIFIED COMPLAINT

FOR DECLARATORY AND INJUNCTIVE

RELIEF AND STATUTORY DAMAGES

App. 29

INTRODUCTION

Plaintiff Evan Minton (“Plaintiff” or “Mr.

Minton”) sought and was denied access to medical

services by Defendant Dignity Health, doing business

as Mercy San Juan Medical Center (“Defendant” or

“MSJMC”), because he is transgender. MSJMC’s

denial to Mr. Minton of medical services that it

regularly provides to non-transgender patients is sex

discrimination and violates the Unruh Civil Rights

Act, Cal. Civ. Code § 51.

As part of the medical treatment

stemming from his diagnosis of gender dysphoria, Mr.

Minton’s surgeon, Dr. Dawson, scheduled a

hysterectomy for Mr. Minton at MSJMC on August

30, 2016. Dr. Dawson regularly performs

hysterectomies at MSJMC, and in fact she had

another hysterectomy scheduled for a cisgender (nontransgender) patient immediately following Mr.

Minton’s scheduled procedure. In a conversation two

days before the scheduled procedure, however, Mr.

Minton notified MSJMC personnel that he is

transgender. The next day, Dr. Dawson was informed

that she would not be permitted to perform Mr.

Minton’s hysterectomy at MSJMC—either the

following day or any day.

According to MSJMC personnel, Dr.

Dawson was prevented from performing Mr. Minton’s

hysterectomy at MSJMC because he is a transgender

man who sought the hysterectomy as treatment for

his diagnosed gender dysphoria. Gender dysphoria is

a serious medical condition resulting from the feeling

of incongruence between one’s gender identity and

App. 30

one’s sex assigned at birth, as experienced by

transgender individuals.

Because Defendant routinely allows Dr.

Dawson and other physicians to perform

hysterectomies for cisgender patients at MSJMC to

treat medical indications other than gender

dysphoria, Defendant’s refusal to allow Dr. Dawson to

perform Mr. Minton’s hysterectomy at MSJMC

constitutes discrimination against Mr. Minton

because of his gender identity.

Defendant’s discrimination violates

California’s Unruh Civil Rights Act, which broadly

prohibits

business

establishments

from

discriminating in the provision of goods and services

to the general public. The Unruh Act prohibits

discrimination based on sex, which is explicitly

defined to include gender identity. Cal. Civ. Code §

5l(b).

Refusing Mr. Minton hysterectomy care

because he is a transgender man seeking the

procedure as treatment for gender dysphoria

therefore violates California law.

Mr. Minton seeks a declaratory

judgment that Defendant violates California law by

prohibiting doctors from performing hysterectomies

for transgender patients with gender dysphoria while

permitting doctors to perform hysterectomies for

cisgender patients without gender dysphoria. In

addition, Mr. Minton seeks an injunction requiring

Defendant to allow doctors to perform the same

procedures on transgender patients with gender

dysphoria that they are permitted to perform on

cisgender patients without gender dysphoria. Finally,

Mr. Minton seeks statutory damages under the Unruh

Civil Rights Act, Cal. Civ. Code § 52(a).

App. 31

JURISDICTION AND VENUE

This Court has jurisdiction under article

VI, section 10, of the California Constitution and

California Code of Civil Procedure §§ 410.10, 525-26,

1060, and 1085.

Venue in this court is proper because this

is an action against a nonprofit corporation, Dignity

Health, which has its principal place of business in the

City and County of San Francisco, at 185 Berry Street,

Suite 300, San Francisco, CA 94107. 1 Civ. Code §

395.5.

THE PARTIES

Plaintiff Evan Minton

Plaintiff Evan Minton resides in

Orangevale, California, a suburb of Sacramento. Mr.

Minton is a transgender man, which means that he

was assigned the sex of female at birth, but his gender

identity is male and he identifies as a man.

Defendant Dignity Health

10.

Dignity Health is registered as a

501(c)(3) tax-exempt nonprofit corporation. According

to its website, Dignity Health is the fifth-largest

health system in the country, owning and operating a

1 Dignity Health describes itself as “a California nonprofit public

benefit corporation headquartered in San Francisco,” 2014 Form

990, Part III, Line 4a, and lists a San Francisco address for the

company. Dignity Health’s most recent Statement of

Information, filed with the California Secretary of State on

October 7, 2016, lists the corporation’s “Principal Office Address”

as 185 Berry Street, Suite 300, San Francisco, CA 94017.

App. 32

large network of hospitals. 2 Also according to its

website, Dignity Health is the largest hospital

provider in California, with 31 hospitals in the state 3.

In 2014, Dignity Health’s federal tax form 990 listed

revenue of over $10 billion and employment of 49,907

people. In Sacramento County, Dignity Health does

business as Mercy San Juan Medical Center. MSJMC

is located in Carmichael.

STATEMENT OF FACTS

Gender Dysphoria Diagnosis and Treatment

11.

“Gender identity” is a well-established

medical concept, referring to one’s sense of belonging

to a particular gender. Typically, people who are

designated female at birth based on their external

anatomy identify as girls or women, and people who

are designated male at birth based on their external

anatomy identify as boys or men. For a transgender

individual, however, gender identity differs from the

sex assigned to that person at birth. Transgender men

typically are men who were assigned “female” at birth,

but have a male gender identity.

12.

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”

(previously known as “gender identity disorder”).

Gender dysphoria is a serious medical condition

codified in the Diagnostic and Statistical Manual of

Mental Disorders (DSM-V) and International

2 http://www.dignityhealth.org/ cm/ content/pages/ about-us.asp

3 Id.

App. 33

Classification of Diseases (ICD-10). 4 The criteria for

diagnosing gender dysphoria are set forth in the DSMV (302.85).

13.

The widely accepted standards of care for

treating gender dysphoria are published by the World

Professional Association for Transgender Health

(“WPATH”). The WPATH Standards of Care have

been recognized as the authoritative standards of care

by leading medical organizations, the U.S.

Department of Health and Human Services, and

federal courts.

14.

Under

the

WPATH

standards,

treatment for gender dysphoria may require medical

steps to affirm one’s gender identity and help an

individual transition from living as one gender to

another. This treatment, often referred to as

transition-related care, may include hormone

therapy, surgery (sometimes called “sex reassignment

surgery” or “gender affirming surgery”), and other

medical services that align individuals’ bodies with

their gender identities. The exact medical treatment

varies based on the individualized needs of the person.

15.

Hysterectomy is surgery to remove a

patient’s uterus and is performed to treat a number of

Gender Dysphoria, American Psychiatric Association (2013),

http://www.dsm5.org/documents/gender%20dysphoria%20fact%

20sheet.pdf (“For a person to be diagnosed with gender

dysphoria, there must be a marked difference between the

individual’s expressed/experienced gender and the gender others

would assign him or her . . . Gender dysphoria is manifested in a

variety of ways, including strong desires to be treated as the

other gender or to be rid of one’s sex characteristics, or a strong

conviction that one has feelings and reactions typical of the other

gender.”).

App. 34

health conditions, including uterine fibroids,

endometriosis, pelvic support problems, abnormal

uterine bleeding, chronic pelvic pain, and

gynecological cancer. 5 A patient can no longer become

pregnant after undergoing a hysterectomy. 6 Thus,

hysterectomy is an inherently sterilizing procedure,

regardless of the reason for which it is performed.

According to the U.S. Department of Health and

Human Services, hysterectomy is the second most

common surgery, after a Cesarean section, among

women in the United States. 7

16.

Transgender

men

often

pursue

hysterectomy as a gender-affirming surgical

treatment for gender dysphoria. The United States

Transgender Discrimination Survey in 2015, which

surveyed almost 28,000 transgender people, found

that 14% of transgender men surveyed had undergone

a hysterectomy, and 57% wanted to undergo a

hysterectomy. 8 According 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.

Hysterectomy, American College of Obstetricians and

Gynecologists (March 2015), http://www.acog.org/Patients/

FAQs/Hysterectomy#what.

6 Id.

7 Hysterectomy, Office on Women’s Health, U.S. Dept. of Health

& Human Services (2014), https://www.womenshealth.gov/

publications/our-publications/fact-sheet/hysterectomy.html#n.

8 James, S. E., Herman, J. L., Rankin, S., Keisling, M., Mottet,

L., & Ana, M. (2016). The Report of the 2015 U.S. Transgender

Survey. Washington, DC: National Center for Transgender

Equality. http://www.transequality.org/sites/default/files/docs/

usts/USTS%20Fu11%20Report%20-%20FINAL%201.6.17.pdf.

App. 35

Mr. Minton’s Gender Dysphoria and Treatment

17.

Mr. Minton first began to identify as

male and take social steps such as trying out different

male names and asking friends and family to call him

by male pronouns in 2011. He was subsequently

diagnosed with gender dysphoria. Pursuant to this

diagnosis and on the recommendation of his treating

physicians, Mr. Minton began to take additional steps

to continue his transition shortly after receiving the

diagnosis. He began hormone replacement therapy in

April of 2012 and had a bilateral mastectomy in July

of 2014. Mr. Minton legally changed his name by way

of court order in December 2014, and he legally

changed the gender shown on his driver’s license in

2015.

18.

By August 2016, Mr. Minton and his

treating physicians had a plan for a series of medical

procedures that would result in a phalloplasty, or the

surgical creation of a penis. 9 The first of these planned

steps was a complete hysterectomy, or removal of his

uterus, fallopian tubes, and ovaries. In Mr. Minton’s

case, hysterectomy was medically necessary care to

treat his diagnosis of gender dysphoria. This was the

professional opinion of Mr. Minton’s hysterectomy

surgeon and two mental health professionals who

assessed Mr. Minton during his transition.

“Phalloplasty in transgender men involves the creation of a

penis using any one of a number of procedures.” Phalloplasty

and metaoidioplasty - overview and postoperative considerations,

Center of Excellence in Transgender Health, http://www.trans

health.ucsf.edu/tcoe?page=guidelines phalloplasty.

App. 36

Defendant’s Discrimination Against Mr. Minton

on the Basis of his Gender Identity

19.

After consulting further with his

primary care physician and obstetrician/ gynecologist,

Dr. Lindsey Dawson, Mr. Minton scheduled his

hysterectomy with Dr. Dawson at MSJMC for August

30, 2016.

20.

Dr. Dawson has been practicing as a

board-certified obstetrician/gynecologist for 11 years

and has had admitting privileges at MSJMC since

2010. Dr. Dawson regularly performs about 1-2

hysterectomies per month at MSJMC.

21.

Two days prior to Mr. Minton’s

scheduled surgery, on August 28, 2016, a preoperation nurse called Mr. Minton to prepare him for

the surgery. During that conversation, Mr. Minton

mentioned that he is transgender.

22.

The next morning, a day before Mr.

Minton’s scheduled procedure, Dr. Dawson received a

call from MSJMC’s surgery department notifying her

that Mr. Minton’s hysterectomy had been cancelled.

23.

Dr. Dawson promptly contacted MSJMC

to inquire about and protest the cancellation of Mr.

Minton’s surgery. She initiated a telephone call to

MSJMC nurse manager Andrea Markham. Dr.

Dawson also spoke by phone that same day with

MSJMC’s president, Brian Ivie. Mr. Ivie informed Dr.

Dawson that she would never be allowed to perform a

hysterectomy on Mr. Minton at MSJMC.

24.

Mr. Ivie further informed Dr. Dawson

that MSJMC would not allow the hysterectomy to

proceed because of the “indication” it was intended to

App. 37

address. Mr. Minton’s medical file reflected an

“indication” of gender dysphoria, under that

condition’s former name of “gender identity disorder,”

and Mr. Minton had further informed the MSJMC

nurse the previous day that he was a transgender man

undergoing the procedure in conjunction with gender

transition.

25.

That same day, in the early afternoon of

August 29, Dr. Dawson called Mr. Minton and

informed him that Dignity Health had cancelled his

surgery. When Mr. Minton asked why, Dr. Dawson

explained her understanding that the hospital had

canceled his hysterectomy because he was

transgender. Mr. Minton was so shocked, hurt, and

distraught at hearing this news that he recalls

sinking to the ground and then collapsing entirely.

26.

Dignity Health’s refusal to allow Dr.

Dawson to perform Mr. Minton’s hysterectomy at

MSJMC on August 30, 2016 caused Mr. Minton great

anxiety and grief. He was devastated at learning that

he was being denied medically necessary care at

MSJMC because he was transgender and needed the

care for the purpose of gender transition.

27.

In addition, Mr. Minton had no time to

spare, as he needed to undergo his hysterectomy three

months before his phalloplasty, which was scheduled

for November 23rd. Mr. Minton had already

experienced numerous delays in accessing medical

care he needed for his gender transition, including

battles over insurance coverage and scheduling his

phalloplasty. As a result, the timing of his

hysterectomy was particularly sensitive.

App. 38

28.

During the same telephone call on

August 29, Dr. Dawson also informed Mr. Minton that

she had been and would continue advocating for him

with Dignity Health to push back against the

discriminatory cancellation decision.

29.

After he heard from Dr. Dawson that his

procedure had been cancelled, Mr. Minton invested

considerable effort in putting pressure on Dignity

Health to let him complete his surgery as soon as

possible.

30.

In the afternoon of August 29, Mr.

Minton participated in a recorded interview with local

television station KCRA about the cancellation of his

surgery. On information and belief, KCRA aired a

story about Mr. Minton’s experience of discrimination

on its August 29 late evening newscast. Mr. Minton

subsequently spoke with several other media outlets,

including the Sacramento Bee and local television

stations Fox 40 and ABC 10, each of which ran a story

about Mr. Minton’s experience of discrimination.

31.

In response to media inquiries, Dignity

Health issued a public statement regarding Mr.

Minton’s situation. As published on the KCRA

website on Tuesday, August 30, the statement read:

At Dignity Health Mercy San

Juan Medical Center, the services

we provide are available to all

members of the communities we

serve without discrimination.

Because of privacy laws, we are not

able to discuss specifics of patients’

care. In general, it is our practice

not to provide sterilization services

App. 39

at Dignity Health’s Catholic

facilities in accordance with the

Ethical and Religious Directives

for Catholic Health Care Services

(ERDs) and the medical staff

bylaws.

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. 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. 10

32.

Also on the afternoon of August 29, Mr.

Minton contacted Jenni Gomez, an attorney with

Legal Services of Northern California who had been

assisting him with other health care-related legal

issues. On information and belief, Ms. Gomez called

MSJMC on the afternoon of August 29 to challenge

the hospital’s discriminatory cancellation of Mr.

Minton’s surgery, and had multiple conversations

with hospital officials about this issue in the course of

the week.

33.

Also in the afternoon and evening of

August 29, Mr. Minton reached out to politicallyCarmichael faith-based hospital denies transgender

man hysterectomy, KCRA3 (Aug. 30, 2016, 8:50am),

http://www.kcra.com/article/carmichael-faith-based-hospitaldenies-transgender-manhysterectomy/6430342 (last visited

Sept. 14, 2017).

App. 40

connected people he knew from his previous work as

an aide to California legislators to ask for their

assistance in pressuring Dignity Health to reverse the

cancellation of his surgery. For example, Mr. Minton

connected with staff members of California Insurance

Commissioner Dave Jones. On information and belief,

Mr. Jones spoke by telephone with Wade Rose, Vice

President of External & Government Relations for

Dignity Health, to ask that Mr. Minton be permitted

to access the care he needed. Also on information and

belief, over the ensuing hours and days, several state

legislators,

legislative

staff

members,

and

Sacramento-area lobbyists contacted Dignity Health

to advocate for Mr. Minton and/or made public

statements of support for him and his need for

surgery.

34.

On Tuesday, August 30, Dr. Dawson met

with Mr. Ivie in person at MSJMC. She also

participated in interviews with multiple media outlets

about Mr. Minton’s situation.

35.

During this flurry of advocacy on Mr.

Minton’s behalf, Dr. Dawson and others discussed

with Mr. Ivie and other Dignity Health officials the

possibility that Dr. Dawson could perform Mr.

Minton’s surgery at Methodist Hospital, a nonCatholic Dignity Health hospital also located in the

Sacramento metropolitan area. However, it was not

immediately clear that this was a viable option. Dr.

Dawson did not have surgical privileges at Methodist

Hospital. Even if she could get emergency privileges

at Methodist Hospital, Dr. Dawson would have to

work in an unfamiliar operating room there and with

an unfamiliar team of nurses, surgical technicians,

and other support staff. Methodist Hospital is located

App. 41

about 30 minutes’ drive away from MSJMC, such that

Dr. Dawson and the other physician who would be

assisting her during Mr. Minton’s procedure could not

easily fit a surgery at Methodist Hospital into a

workday filled with other commitments at MSJMC

and their nearby office. Finally, Mr. Minton had

health insurance coverage through Blue Shield of

California, and it was unclear whether Methodist

Hospital was within his plan’s coverage network.

36.

Dr.

Dawson

and

Mr.

Minton

communicated on Tuesday, August 30 and concluded

that attempting to make the surgery happen at

Methodist Hospital was the best remaining option for

Mr. Minton because it provided the best chance for

him to complete his hysterectomy promptly.

On information and belief, Dr. Dawson

then invested a significant amount of time in securing

emergency surgical privileges at Methodist Hospital,

while Ms. Gomez also invested a significant amount

of time in helping Mr. Minton access the surgery he

needed and resolve remaining issues.

38.

On Thursday, September 1, paperwork

regarding emergency surgical privileges for Dr.

Dawson at Methodist Hospital was fully executed.

39.

Dr. Dawson performed Mr. Minton’s

hysterectomy at Methodist Hospital on Friday,

September 2.

40.

Dr.

Dawson

routinely

performs

hysterectomies for her patients, and in fact performed

another hysterectomy at MSJMC for a cisgender

patient on August 30, 2016, the same day that Mr.

Minton’s surgery had originally been scheduled.

Other physicians who practice at MSJMC also

App. 42

regularly perform hysterectomies at the hospital for

cisgender patients who have not been diagnosed with

gender dysphoria, for indications such as chronic

pelvic pain and uterine fibroids.

41.

During the period of uncertainty when

he was not sure if he would be able to undergo his

hysterectomy at all, as well as when he was not sure

if he would be able to undergo his hysterectomy at

Methodist Hospital, Mr. Minton was painfully aware

that he had been denied full and equal access to the

operating room and related facilities of MSJMC as a

direct result of his disclosure to MSJMC staff on

August 28 that he is a transgender man. Mr. Minton

suffered—and continued to suffer, even after his

surgery was rescheduled at Methodist Hospital—the

dignitary harm of having been denied full and equal

access to medical treatment by MSJMC. Mr. Minton

told friends that he felt “downtrodden” and deeply

hurt by this discriminatory treatment.

42.

In addition, Methodist Hospital is

located much farther away than MSJMC from the

family home in Orangevale where Mr. Minton was

planning to recuperate after his hysterectomy. Thus,

moving the procedure increased the time and travel

burden on Mr. Minton and his mother who drove him

home after surgery.

43.

If Defendant is not enjoined from

preventing doctors from performing hysterectomy

procedures for transgender patients with gender

dysphoria in its hospitals, Mr. Minton and others

similarly situated—i.e., transgender individuals who

suffer from gender dysphoria—will be unlawfully

denied access to medical treatment at hospitals run by

the largest hospital provider in California.

App. 43

FIRST CAUSE OF ACTION

(Violation of The Unruh Act, Civ. Code § 51(b))

44.

Plaintiff incorporates by reference the

allegations of the above paragraphs as though fully

set forth herein.

45.

The Unruh Act prohibits discrimination

on the basis of sex in all business establishments.

Specifically, it guarantees that Californians are

entitled to the “full and equal accommodations,

advantages, facilities, privileges, or services in all

business establishments of every kind whatsoever”

regardless of their sex. Civ. Code § 51(b).

46.

The Unruh Act defines “sex” to include a

person’s gender. “Gender” means sex, and includes a

person’s gender identity and gender expression. Civ.

Code § 51(e)(5).

47.

Discrimination against an individual on

the basis of his or her gender identity is

discrimination on the basis of “sex” under the Unruh

Act.

48.

Defendant prevented Dr. Dawson from

performing Mr. Minton’s hysterectomy at MSJMC 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 and thus usually experienced by transgender

people.

49.

Defendant does not prohibit physicians

at its hospitals from treating cisgender people with

other diagnoses with hysterectomy.

50.

By preventing Dr. Dawson from

performing Mr. Minton’s hysterectomy, Defendant

App. 44

discriminated against Mr. Minton on the basis of his

gender identity as a transgender man.

51.

Defendant’s preventing Dr. Dawson

from performing Mr. Minton’s hysterectomy at

MSJMC is sex discrimination in violation of

California Civil Code § 51(b).

52.

Mr. Minton was denied full and equal

access to Defendant’s facilities and services in

violation of California Civil Code § 51(b) because he

was barred from undergoing a medically necessary

hysterectomy at MSJMC.

53.

Defendant’s discriminatory practices

caused Plaintiff considerable harm. Therefore, Mr.

Minton seeks injunctive relief and statutory damages

under the Unruh Act.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests

that the Court:

Enter a declaratory judgment stating

that Defendant’s preventing Mr. Minton’s physician

from performing his hysterectomy at MSJMC violated

the Unruh Act, Civil Code § 51(b).

Enter an order for statutory damages of

$4,000 under the Unruh Act, Civil Code § 52(a).

Enter an order enjoining Defendant, its

agents, employees, successors, and all others acting in

concert with them, from (1) discriminating on the

basis of gender identity or expression, transgender

status, and/or diagnosis of gender dysphoria in the

provision of health care services, treatment, and

facilities; and (2) preventing doctors from performing

App. 45

hysterectomy procedures in its hospitals on the basis

of a diagnosis of gender dysphoria.

Enter an order requiring Defendant to

pay Plaintiff’s attorneys’ fees and costs under Civil

Code § 52.l(h), Civil Code § 52(a), Code of Civil

Procedure § 1021.5, and any other applicable statutes.

Grant Plaintiff any further relief the

Court deems just and proper.

Dated: September 19, 2017

Respectfully Submitted,

By:___ /s/ Christine Saunders Haskett_____________

CHRISTINE SAUNDERS HASKETT (SBN 188053)

LINDSEY BARNHART (SBN 294995)

THEODORE KARCH (SBN 312518)

COVINGTON & BURLING LLP

One Front Street

San Francisco, CA 94111

Telephone: (415) 591-6000

Facsimile: (415) 591-6091

Email: chaskett@cov.com

AMANDA C. GOAD (SBN 297131)

RUTH DAWSON (SBN 290628)

MELISSA GOODMAN (SBN 289464)

ACLU FOUNDATION OF SOUTHERN

CALIFORNIA

1313 West Eighth Street

Los Angeles, CA 90017

Telephone: (213) 977-9500 x258

Facsimile: (213) 977-5297

Email: agoad@aclusocal.org

App. 46

ELIZABETH O. GILL (SBN 218311)

CHRISTINE P. SUN (SBN 218701)

ACLU FOUNDATION OF NORTHERN

CALIFORNIA, INC.

39 Drumm Street

San Francisco, CA 94111

Telephone: (415) 621-2493

Facsimile: (415) 255-8437

Email: egill@aclunc.org

DAVID LOY (SBN 229235)

ACLU FOUNDATION OF SAN DIEGO &

IMPERIAL COUNTIES

P.O. Box 87131

San Diego, CA 92138-7131

Telephone: (619) 232-2121

Facsimile: (619) 232-0036

Email: davidloy@aclusandiego.org

Attorneys for Plaintiff Evan Minton

App. 47

VERIFICATION

I, Evan Minton, have read paragraphs 9, 17-19,

21, 24-29, 30-33, 36, 39, and 41-42 of this Verified

Complaint for Declaratory and Injunctive Relief and

Statutory Damages in the matter of Minton v. Dignity

Health. The facts within these paragraphs are within

my own personal knowledge and I know them to be

true.

I declare under penalty of perjury under the

laws of the State of California that the foregoing is

true and correct.

Dated: September 19, 2017

/s/ Evan Minton

Evan Minton

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.