MANATT, PHELPS (Sr PHELLIPS, LLP ATTORNEYS LAW L05 MANATT, PHELPS PHILLIPS, LLP BARRY S. LANDSBERG (Bar No, CA 117284) HARVEY L. ROCHMAN (Bar No. CA 162751) S. RUTENBERG (Bar No. CA 205309) 11355 West Olympic Boulevard Los Angeles, CA 90064-1614 Telephone: (310) 312-4000 Facsimile: (310) 3124224 Attorneys for Defendant DIGNITY HEALTH including dba MERCY SAN JUAN MEDICAL CENTER ELECTRONICALLY FILED Superior Court of California, County of San Francisco 07 [03/ 20 17 Clerk of the Court SCHIRO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO EVAN MINTON, Plaintiff, VS. DIGNITY DIGNITY HEALTH d/b/a MERCY SAN JUAN MEDICAL CENTER, Defendants. Case N0. CGC 17658259 DEFENDANT DIGNETY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO VERIFIED COMPLAINT [Filed concurren?y with: (1) Notice of Demurrers; (2) Demurrers; (3) Request for Judicial Notice; (4) Declaration of Craig S. Rutenberg; (5) Netiee of Payment for Court Reporter Fee] Date: July 26, 2017 Time: 9:30 am Dept: 302 Hearing Reservation N0. 07030726438 MEMORANDUM OF AND AUTHORITIES IN SUPPORT OF DEMURRERS MANATT, PHELPS cg: PHILLIPS, AT LAW Log A NGEHZS TABLE OF CONTENTS gage I. INTRODUCTION H. FACTS 3 A. Minton?s Allegations 3 B. Mercy 4 C. The Unruh Act Claim Fails as a Matter of Law! 6 l. Minton?s Allegation that Dignity Health Discriminates on the Basis of Gender a Medical Condition, 13 Not Actionable Under the Unruh Act 6 2. Minton?s Complaint Also Does Not Allege Intentional Discrimination on the Basis of Gender 7 3. Dignity Health Followed the Rule Stated in the California Supreme Court?s DCCISIOD 1n North Coast 9 D. The State and Federal Constitutions Bar Minton?s Claim 9 1. A Court May Not Compel a Religious Hospital to Violate Religious Doctrine 9 2. The Relief Sought Would Violate Constitutionally Protected Free Exercise and, Free Expression Rights 10 3. The Relief Minton Seeks Would lrnpermissibly Involve the Court in Church Affairs and Matters of Church Governance 23 CONCLUSEON 15 i COMPLAINT FOR DECLARATORY AND RELIEF AND STATUTORY DAMA 28 MANATT, 3t FHILMPS, LL13 AT LAW Los ANGBLES TABLE OF AUTHORITIES i?age CASES Allen 12. Sisters ofSl". Joseph, 361 F. Supp. 1212 Tex. 1973), af?cl, 490 F.2d 81 (5th Cir. 1974) 2, 10 Boy Scouts ofAmei?. v. Dale, 530 US. 640 (2000) 12 Catholic Charities of Sacramento v. Sup. t. 32 Cal.4th 527 (2004) 3, 11 Chrisman, 506 F.2d 211312 10 Conservarorshz'p ofMorrz'son, 206 Ca1.App.3d 304, 311 (1988) 10 EEOC 12. Catholic Univ. of Am, 83 F.3d 455 (DC. Cir: 1996) 11, 14 Employment Division, Dept. of Human Resources of Oregon 9. Smilh, 494 US. 872 (1990) 11 Engel 12. Vitale, 370 US. 421 (1.962) 15 First Covenant Church ofSeattle v. City ofSeaa?le, 840 P.2d 174 (Wash. 1992) (en banc) 11, 12 Franciscan Alliance, Inc. v. Burwell, F. Supp. 3d w, 2016 WL 7638311 09.13. Tex. December 31, 2016) 4 Greater LA. Agency on Deafness v. Cable News Network, Ina, 742 F.3d 414 (9th Cir. 2014) 7 Harris v. Capital Growth Investors XIV, 52 Ca1.3d 1142 (1991) 7 Hart v. all Awareness Network, 13 Cal.App.4th 777 (1993) 12, 13, 15 Hosanna-Tabor Evangelical Lutheran Chaoh and Sch565 US. 171 (2012) 14 Hurley 12. Irish?American Gay, Lesbian and Bisexual Group ofBosloh, 515 US. 557 (1995) 12 Intern ?l Refugee Assistance Project v. Tramp, 857 F.3d 554 (4th Cir. 2017) 15 Kedro?v. Saint Nicholas Cathedral, 344 US. 94 (1952) 14 ii VERIF 1E1) COMPLAINT FOR DECLARATORY AND WEUNCUVE RELIEF AND STATUTORY DAMA MANMT, PHELFS LL13 1W5 AT [.08 TABLE OF AUTHORITIES (continued) Page Kelly v. Methodist Hosp. 22 (331.401 1108 (2000) 12 Koebke v. Bernardo Heights Country Club, 36 824 (2005) 7 Lewin v. St. Joesph ?5 Hospital of Orange, 82 Ca1.App.3d 368 (1978) 8 Mot?eo? Woodburn v. Fresno Community Hospital and Medical Center, 221 Ca1.App.3d 1169 (1990) 8 MoKeon v. Mercy Healthcore Sacramento, 19 (3211.401 321 (1998) 5 Means v. US. Conf of Catholic Bishops, 2015 WL 3970046, at (WD. Mich. 2015), 836 F.3d 643 (63? Cir. 2016) 5,14 Nolly v1 Grace Comm. Church, 47 Cal.3d 278 (1988) 14 New 12. Kroeger, 167 Cai.App.4th 800 (2008) 14 North Coast Women ?5 Care Med. Grp. v. Sup. Court, 44 (331.461 1145 (2008) 2, 3, 9, 11 Overall v. Ascension, 23 F. Supp. 3d 816, 831 (ED. Mich. 2014) 5 People v. Woody, 61 Ca1.2d 716 (1964) 10, 13 Riley 12. National Federation for the Blind ofN. C, [no 487 11.8. 781 (1988) 13 Silo 12. CH Medical Foundation, 27 {3311.401 1097 5 Smith v. FEHC, 12 (331.4111 1143 (1996) 11 Taylor v, St. Vincent's Hosp, 523 F.2d 75 (9th Cir. 1975) 2 Texas v. Johnson, 491 US. 397 (1989) 11 Trinity Lutheran Church Inc. v. Corner, 4 8. Ct. w, 2017 WL 2722410 (11.8.. S. Ct. June 26, 2017) 14 Turner Brood. Inc. 512U.S. 622 (1.994) 13 111 VERIFIED COMPLA1NT 130R DECLARATORV ANS TNJUNCTIVE RELIEF AND STATUTORY DAMA MANATT, PHELPS 8r PHILUPS, LLP ATTORNEYS AT LAW L05 AMGELES TABLE OF AUTHORETEES (eontinue?) Page Turner v. ASS ?n of 14m. Med; COZZS., 167 CalAppi?lth 1401 (2008) 2, 7 Watkins 12. Mercy Med. Ctr. 364 F. Supp. 799 (D. Idaho 1973) 520 F.2d 894 (9th Cir. 1975) 2, 4 STATUTES 42 USC. 2000131) 10 CW. Code 51(0) 7 Civ. Code 51(e)(3) 7 Government Code 129266) 6, 7 OTHER AUTHORITIES Cal. Coast, Article I, 2 3, 11 Cal. Const, Article I, 4 3, 10 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, p. 451 (.2013) 4 1221 01m sted-decree.odf; 6 councils/ii vatican council/documents/vat? ii eons 19651207 gaudium-et?spes en.html 9 1 0 denied 6 5 5 l992.pdf 10 5 International Statistical Classi?caiion of Diseases and Related Health Problems, F643 4 Religious Freedom Restoratioa Act: Hearing on S. 2969 Before ihe S. Comm. on the Judiciary, 102d Cong. 192 (1992) 10 iv VERIFIED COMPLAENT FOR DECLARATORY ANS 1N1 UNCTIVE RELIEF AND STATUTORY DAMA Nmmemeommummemws-?c: 28 PHELPS a Arroansrs AT LAW ANGELES I. Plaintiff Evan Minton, a transgender man who sought a hysterectomy from Mercy San Juan Medical Center (?Mercy?), a Dignity Health hospital, has failed to allege a cause of action for intentional discrimination under the Unruh Act. Minton alleges that Dignity Health cancelled the planned hysterectomy at Mercy, a Catholic hospital, because Mercy does not perform hysterectomies to treat gender and that Dignity Health rescheduled the procedure to take place at Methodist Hospital, a non?Catholic hospital also owned by Dignity Health. The surgery was performed there three days later. Minton?s Complaint admits that even this modest delay was due to his physician?s schedule rather than the actions of Dignity Health. As a matter of law, these allegations do not state a claim for intentional discrimination under the Unruh Act. First, the Unruh Act does not: prohibit the alleged discrimination based upon the diagnosis of gender Minton alleges gender is a medical condition suffered by some transgender individuals involving rnental distress related to gender non?conformity. Although Minton labels the claim as one for ?sex? discrimination, the complaint in fact states that Mercy determines Whether or not to permit a hysterectomy based upon whether the procedure is intended to treat gender or another condition, such as cancer. While the Unruh Act prohibits discrimination based upon certain narrowly defined medical conditions, gender is not among those conditions. Therefore, Minton has failed to state a claim under the Unruh Act. Second, the Unrnh Act forbids only intentional discrimination and does not prohibit disparate impact discrimination. The complaint fails to allege any discriminatory animus against persons with gender or transgender individuals. To the contrary, the complaint alleges that at Mercy, a Catholic hospital, Dignity Health not surprisingly distinguishes between hysterectomies performed as a treatment for gender and hysterectomies performed to treat other conditions. Minton further alleges that this purported policy burdens transgender people because they have a higher incidence of gender and a signi?cant percentage of transgender men have had, or would like to have, a hysterectomy. These allegations do not state a cause of action for intentional discrimination. To the extent Minton alleges a disparate impact, MEMORANDUM OF POINTS AND AUTHORITIES EN SUPPORT OF DEMURRERS shearMtfitlisiittif AT LAW LOS ANGELES the claim is not actionable under the Unruh Act which does not prohibit disparate impact discrimination. Turner 3). Ass ?11 ofAm. Med. Calls, 167 Cal.App.4th 1401, 1408 (2008) policy that is neutral on its face is not actionable under the Unruh Act, even when it has a disproportionate impact on a protected class?) (emphasis added). Not only does the complaint fail to allege intentional discrimination, Minton?s allegations af?rmatively establish that there was no such discrimination. The complaint af?rmatively alleges that Dignity Health accommodated Minton by immediately rescheduling the procedure at ?a non- Catholic Dignity Health hospital? in Sacramento. (Compl. 1] 24). Alone, this fact establishes that Dignity Health, the only defendant, did not discriminate against Minton. Instead, Dignity Health simply followed binding Catholic doctrine, which prohibited Mercy from performing the hysterectomy and did its best to accommodate Minton nonetheless. Third, Dignity Health did exactly what the California Supreme Court told health care providers to do When confronted with a con?ict between its religions tenets and a patient?s request for a medical procedure. In. North Coast Women ?5 Care Med. Grp. v. Sup. Court, 44 Cal.4th 1145 (2008), the Supreme Court held that where certain physicians had religious objections to providing fertility treatment to lesbians, their medical practice could avoid liability under the Unruh Act by ?ensur[ing] that every patient [receive the procedure] through a North Coast physician lacking defendants? religious objections.? Id. at 1159. Here, the complaint admits that Dignity Health did just that it rescheduled the procedure to be performed a few days later at a ?non-Catholic Dignity Health hospital?, and thus was able to provide Minton with the procedure he sought While not violating Mercy?s religious beliefs. (Compl. 11 24.) Fourth, Minton ignores decades of jurisprudence confirming that a Catholic hospital may prohibit procedures that Violate the hospital?s faith.E Minton overlooks Dignity Health?s 1 Taylor v. St. Vincent?s Hosp, 523 F.2d 75, 77 (9th Cir. 1975) (?if the hospital?s refusal to perform sterilization infringes on any constitutionaily cogn?izable right to privacy, such infringement is outweighed by the lace to rotect the freedom of rel: ion of enommatronal hospitals ?With relr ions or moral a most steri rzations and abortions?) Citation omitted); Watkins v. Mercy Med. 364 F. Su p. 799, 803 . Idaho 1973) (?Mercy Medical Center has the right to adhere to its own tell ious beliefs, an not be forced to make its available for servrces which it finds reps. nant to those eliefs?) of 520 F.2d 894 (9th Ctr. 1975); Allen v. Sisters ofSl. Joseph, 361 F. Supp. 212, 1211i (ND. Tex. 1973) The interest that the public has in the establishment and operatronof hospitals by rehgions organizations is paramount to an inconvenience that would result to the laintiff in re her to either he moved or await a later date or her sterilization?), 490 F.2d 81 (gth Cir. 1974 . 2 MEMGRANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS 4rMANATT, PHELPS a AT LAW Los ANGELES constitutional rights of free exercise of religion and freedom of expression. Cal. Const, art. I, 2 and 4; US. Coast, Am. State laws that burden these freedoms are suhject to strict Catholic Charities of Sacramento v. Sap. C11, 32 Cal.4th 527, 562 (.2004); North Coast, 44 Cal.4th at 1158-69. Under strict scrutiny, no law (or court order) can be applied ?in. a manner that substantially burden[s] a religious belief or practice unless the state show[s] that the law represent[s] the least restrictive means of achieving a compelling interest or, in other words, [is] narrowly tailored.? Catholic Charities, 32 Cal.4th at 562. That Mercy was able to reschedule the procedure at an affiliated ?non?Catholic Dignity Health hospital? within 72 hours unequivocally shows that a less restrictive means was available. The Court should sustain the demurrer without leave to arnendf2 II. A. Minton?s Allegations Minton is a transgender man; he was born with female anatomy but identi?es as a man. (Compl. ?ll 9.) Minton first began to identify as male in 2011 and, at some point after 201 i, Minton was diagnosed with gender (Id. if 17.) Minton began hormone replacement therapy in 2012, and had a bilateral mastectomy in 2014. 11 17.) He legally changed his name and gender on his driver?s license. By August 2016, Minton had a plan for a series of medical procedures to further implement his gender transition, beginning first with a complete hysterectomy (removal of his uterus, failopian tubes, and ovaries), followed by phalloplasty, the surgical creation of a penis. (Id. 11 18.) Minton originally scheduled his hysterectomy for August 30, 2016, at Mercy. (lot, 1111 18, 19.) On August 28, 2016, Mercy learned that Minton?s scheduled hysterectomy was to treat gender fl 21). The next day, Mercy allegedly noti?ed Minton?s physician that Dignity Health would not permit the procedure to be performed at Mercy because the hysterectomy was scheduled as a treatment for gender (Id. '11 21). However, Dignity 2 Mintonis pra or for injunctive relief is also moot. He admits that the hysterectomy he sou ht was performed on ?eptemher 2,2016 making it unnecessary for him to seek additional inpatient ospitai surgical servrces. (Complaint, {1 25.) As Minton does not seek class relief, he had no iegal basis to seek injunctive relief for himseit or anyone else. 3 MEMORANDUM OF POINTS AND AUTHORITIES IN Oir DEMURRERS \oeoucnme Mitti?ftpif?ttif? Arrowars Ar LAW L05 Aussies Health immediately rescheduled the procedure to take place at Methodist Hospital, a ?horn Catholic Dignity Health hospital.? (Id. ii 24.) Minion?s physician could not perform the surgery immediately. As a result, the hysterectomy was performed three days iater on September 2, 2016, at Methodist Hospital, which is also in Sacramento. (Id. 11 25). Minton alleges that gender is a ?medical condition.? (Compl. 12, 32). Gender is codi?ed in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013) and International Classi?cation of Diseases (Compl. In the DSM-V, the American Association de?nes ?gender as ?the distress that may accompany the incongmence between one?s experienced or expressed gender and one?s assigned gender.? 3 The classi?es gender identity disorder as within the category of adult personality and behavior disorders.4 (Compl, ii 12.) Treatment may include hormone therapy, surgery, or other medical procedures. (Id. ll 14.5 Finally, Minton alleges that Dignity Health ?violates California law by prohibiting doctors from performing hysterectomies for patients with gender While permitting doctors to perform hysterectomies for patients without gender (Id(same)). According to Minton such conduct constitutes discrimination on the basis of transgender sexual identity because in a 2015 survey ?14% of transgender men surveyed had undergone a hysterectomy and 57% wanted a hysterectomy someday.? (Id. ii 16). 3? Mam: Mercy is a Catholic hospital owned by Dignity Health. (Compl?l 10). It was founded in 1967 by the Sisters of Mercy, a Catholic congregation of women religious Who carry out the 3 4 Diagnostic and Statistical Manual ofMentai Disorders, Fifth Edition},1 p) 451 (2013 International Statistical Classi?cation of Diseases and Related Heal . obleins, E3643. There is no consensus regardin surgical treatment for gender The fe eral government has conducted its own studies re ar mg sur real treatment for gender and reported ?con?icting? results: ?some re orted bene its while ot ers reported harms.? Alliance, Inc. v. Bowel}, F. Supp. 3d --, 20}. WL 763831 3., at (ND. Tex. December 31, 2016) (citin Centers for Medicare Me icaid Sen/ices, Proposed Decreron Memo for Gender and Gen .er Reassignineut Surgery, (June 2, 2016)). in Franciscan Alliance, the court issued a natronwrde prohibiting enforcement of a regulation enacted pursuant to the Patient hrotection and Affordable Care Act, which prohibited discrimination on the basrs of gender identity. Franciscan, like Mercy provrdes all of its standard medical services to every including those who identify as transgender: Inf. at _Also lilge Mercy, it does not perform gender transrtiomrelated procedures because they conflict with its religious beliefs. Id. at Franciscan successfully chailenged the regulation because it would re uire Franciscan, and. other reiigious goalth care providers, to provrde gender transmon procedures that con with their religious beliefs. Id. at 4 MEMORANDUM OF POINTS AND AUTHORITEES IN SUPPORT OF DEMURRERS LAW has Antennas healing ministry of Jesus by bringing health care to millions of people through the founding and administration of hospitals. The Sisters of Mercy first arrived in Sacramento in 1857 and began providing healthcare to the community before the turn of the century.6 Today the Sisters of Mercy serve in six health systems and many related facilities across the United States,7 See McKeon v, Mercy Healrhcare Sacramento, 19 Cal?l?i1 321, 323 (l998)(Sisters of Mercy founded Dignity Health?s Sacramento hospitals in 1897), superseded by statute as stated in Silo 12. CH Medical Foundation, 27 Care" 1097, 1210 (2002). Dignity Health?s mission is to ?further[] the healing ministry of Jesus?8 and Mercy is listed in the Of?cial Catholic Directory, which re?ects that Mercy is an official part of the Catholic Church. (Request for Judicial Notice Ex. 1.)9 As such, Mercy is bound to follow the Ethical and Religious Directives (ERDS), which are promulgated by the US. Conference of Catholic Bishops.? (RJN, EX. 2.) McKeon, 19 Cal.4th at 323 (Mercy hospital is bound by the ERDs ?which require fidelity to the church?s teachings, are issued by the National Conference of Bishops? and are incorporated into the articles of incorporation and bylaws of the ?136 religiously af?liated entity that owns the hospital). The purpose is to reaf?rm the ethical standards of behavior in health care that ?ow from the Church?s teachings about the an dignity of the human person? and to provide authoritative guidance on certain moral issues that face Catholic health care today.m Means v. US. Conf ofCathoZic Bishops, 2015 WL 3970046, at (WD. Mich. 2015), a??d 836 F.3d 643 (6th Cir. 2016). Directive 5 provides that ?Catholic health care services must adopt these Directives as a policy, [and] require adherence to them within the institution as a condition for medical privileges and employment . . . (RJN EX. 2 (emphasis added).) Catholic hospitals that fail to adhere to the ERDS risk revocation of their ?An entity 18 listed in the only 1ft], bishop of the Roman Catholic Church determines the entity is gerated, supervrsed, or controlled or in connection With the Roman Catholic Churchf Courts View the listing as a public declaration the Roman Catholic Church that an organization is associated with Church,? Overall v. Ascension, 23 F. Supp. 3d 816, 831 (ED. Mich. 2014) (citation omitted). 10 ?Individual bishops exercise authority under Canon Law to bind all Catholic health care institutions located within their diocese to the ERDS as particularlaw within the diocese.?_ Means v. US. Conf of Catholic Bishops, 20l5 WL 3970046, at *3 (WD. Mich. June 30, 2015), a??d 836 F.3d 643. 5 MEMORANDUM OF AND 1N Oi: DEMURRERS MANATT, PHELPS dz LLP ATTORNEYS AT LAW Los Aussies Catholic status altogether. Directive 29 provides; ?All persons served by Catholic health care have the right and duty to protect and preserve their bodily and functional integrity. The functional integrity of the person may be sacri?ced to maintain the health or life of the person when no other morally permissible means is available.?12 I C. The Unrnh Act Claim Fails as a Matter of Law] 1. Minton?s Allegation that Dignity Health Discriminates on the Basis of Gender a Medical Condition, Is Not Actionable Under the Unruh Act. Although Minion labels his claim as one for ?sex? diserirnination under the Unruh Act, the Complaint alleges discrimination on the basis of an alleged ?medical condition.? Speci?cally, Minton repeatedly alleges that Dignity Health discriminated against him because it allegedly refused to permit his physician to perform a hysterectomy as a treatment for gender while permitting physicians to perform hysterectomies for other medical conditions. Compl. ?ll 12 (?Gender is a serious rnedical condition . . ?ll 6 (defendant violates Unruh Act ?by prohibiting doctors from performing hysterectomies for patients with gender while permitting doctors to perform hysterectomies for patients without gender 'll 27 (?If Defendant is not enjoined from preventing doctors from performing hysterectomy procedures for patients with gender in its hospitals. Mr. Minton and others similarly situated transgender individuals who suffer from gender will be unlawfully denied access to medical treatment. . The Unruh Act prohibits discrimination on the basis of speci?c ?medical conditions.? However, gender is not one of the speci?c medical conditions identi?ed in the statute. Under the Unruh Act, ?medical condition? has the same meaning as defined in snbdivision of Section 12926 of the Government Code, which narrowly de?nes that term to include health impairments related to cancer and genetic characteristic including a scienti?cally or medically identi?able gene or chromosome ?that is known to be the cause of a disease or disorder in a 2455295; see also healt at p. 7 [from the can sometimes ppg?lpenalties including the loss of the hos italfs ?Catholic? status . . . Ex. 3 (ERD 53 prowdes, ?Direct steri 12312101}. of either men or women, Whether permanent or temporary, is not permitted in a Catholic heaith care institution?) 6 MEMORANDUM OF POINTS AND AUTHORETIES IN SUPPORT OF DBMURRERS ATTORNEYS AT LAW L03 ANGELES person . . Civ. Code Gov. Code llese, cancer is irrelevant and Minton does not allege that Dignity Health discriminated against him based upon a genetic characteristic known to cause a disease or disorder. Accordingly, as a matter of law, the Unruh Act does not prohibit the alleged discrimination on the basis of gender 2. Minton?s Complaint Also Does Not Allege Intentional Discrimination on the Basis of Gender. In an attempt to avoid pleading a cause of action for discrimination based upon a medical condition that is not actionable under the Unrah Act, Minton labels the same allegations as discrimination on the basis of ?sex.? However, this basis of the complaint also fails. To state a claim under the Unruh Act a plaintiff must allege intentional and invidious sex discrimination. Disparate impact discrimination is not actionable. Harris 12. Capital Growth Investors XIV, 52 Cal.3d ll42, 1172 (1991) (landlord?s minimum income policy did not violate Unruh Act notwithstanding disparate impact on women); Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 853 (2005) (club?s policy extending bene?ts to spouses did not violate the Unrsh Act notwithstanding disparate impact on unmarried same sex couples); Turner, 167 Cal.App.4th at 1408439 (time limit for examination does not violate Unruh Act notwithstanding disparate impact on those with learning or reading?related disabilities); Greater LA. Agency on Deafness 12. Cable News Network, Inc, 742 F.3d 414, 427 (9th Cir. 2014) (rejecting argument that CNN violated the Unruh Act by acting with deliberate indifference to the known impact on persons of its practice of not making closed-?captioning aVailable for on?line videos); Civ. Code 51(c) (?This section shall not be construed to confer any right or privilege on a person that is . . . applicable alike to persons of every sex . . Here, the alleged conduct and policy Dignity Health?s refusal to permit hysterectomies for people diagnosed with gender while permitting hysterectomies for people with {3 Government Code 12926 provides: ?Medical condition? means either of the following: (1) Ang health 1mpair1ne?nt related to or associated Witha diagnosrs of cancer or a record or history of cancer. (2) enetrc characteristics. For purposes ofthis section, ?genetic characteristics? means either of the followrng: (A) Any scienti?cally or me ically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or his or her that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is "presently not associated with any of an disease or disorder. (B) Inherited characteristics that may derive from the individual or family member, at are known to be a cause of a disease or disorder in a erson or his or her or that are determined to be associated with a statistically increased risk of eveloprnent of a disease or disorders and that are presently not associated With any of any disease or disorder. 7 MEMORANDUM OF POENTS AND AUTHORETIES IN SUPPORT OF 42PHELPS a; PHELLIPS, AtroaNEvs AT LAW L65 ANGELES other medical. conditions does not intentionally discriminate against transgender people. According to the complaint, this policy impacts transgender people because a signi?cant percentage of transgender men with gender allegedly also have had, or want, a hysterectomy. For this reason Minton alleges that statistical evidence gathered from a 2015 survey establishes that a signi?cant number of transgender men have had or say they would someday like to have a hysterectomy. However, that a hospital?s alleged policy of refusing to provide a hysterectomy as a treatment for gender may impact a protected group such as transgender rnen does not support a claim for intentional discrimination. Minton?s allegations actually establish the absence of intentional discrimination. Dignity Health permitted the procedure at one of its hospitals, thereby onequivocally demonstrating that it does not intentionally discriminate against transgender people or prohibit physicians from performing hysterectomies to treat gender Instead, Dignity Health simply exercised a reasonable administrative prero gattve14 to reschedule Minton?s surgery at a hospital that was not barred from performing the procedure due to its required adherence to Catholic doctrine.15 Moreover, Mercy?s adherence to the ERDs is the very antithesis of discrimination. Mercy, as a Catholic hospital, treats all of its ministry?s patients with respect and compassion. The Church articulated this requirement at the Second Vatican Council in 1965, stating: ?with respect to the fundamental rights of the person, every type of discrimination, whether social or cultural, whether based on sex, race, color, social condition, language or See Mateo: Woodbum v. Eraser) Community Hospital and Medical Center, 221 Cal.App.3d U69, 1184_ 51990) (?An important public Interest 1n a hospital?s to make managerial and pohcy eterminations and to retain control over the generai management of the hos itai?s business?); see also See, egg, Lewin v. St. Joesph :3 Hospital omenge, 82 Cal.App.3d 368, 384-85 978) ?The operation and a ministration of a hospital involves a great dent of technical and ecialrzed know edge and experience, and the governing board of a hospita} must be resented to have at east as great an. experttse in matters relatm to operation of the os ital as any governmenta administrative agency with respect to matters committed to authority. . . . ridges are untrained. and courts ill-equipped for hospital administration, and. it is neither possible nor desirable for the courts to act as supervening boards of directors pr every nonprofit hospital cor oration in the state, . Minton also does not allege at Mere refuses all treatment for patients with gender horia, which negates the core contention that Mercy based upon gender identity, A defen ant does not discriminate against a protected grou when it provrdes servrces to others in the same group. Rather, Minton ar ues that because Mercyal ows some hysterectomies gin cases of diseased organs), it is re uired to allow a ysterectomy invoivrng heaithy organs for a transgen er man. But Minton has not ailege that Mercy wou perform a hysterectomy on a healthy organ for anyone, whether a transgendered man or a cis endered woman; regardless of the patient?s gender Identity, the procedure is not performed because it vio ates the core rinci le of bodily integrity contained in Directive 29, This is yet another reason that Minton has faile to al ege intentional discrimination based upon sex. 8 MEMORANDUM OF POINTS AND AUTHORITIES IN OF DEMURRERS 4293bMilfilaif?it?is Arrokuavs At LAW L05 ANGELES religion. is to be overcome and eradicated as contrary to God?s intent?? And ERD 23 provides that ?{t]he inherent dignity of the human person must be respected and protected regardless of the nature of the person?s health problem or social status. The respect for human dignity extends to all persons who are served by Catholic health care.? (KIN EX. 3 (emphasis added).) The reason for denying Minton?s requested procedure had nothing to do with discrimination based upon sex; the procedure was denied because Mercy is a Catholic hospital. indeed, Minton does not allege that Mercy ever refused, or would refuse, to provide him with inpatient hospital services for any other condition besides a hysterectomy for gender That alone dispels the notion that Mercy intentionally discriminated against Minton because of his ?gender,? 3. Dignity Health Followed the Rule Stated in the California Supreme Court?s Decision in North Coast. The Unruh Act claim also fails because Dignity Health did exactly What the California Supreme Court said to do to in similar circumstances in order to avoid Unruh Act liability. In North Coast, the Court held that where physicians objected on religious grounds to providing fertility treatment to a lesbian couple, the physician practice could avoid liability under the Unruh Act by ?ensur[ingl that every patient [receive the procedure] through a North Coast physician lacking defendants? religious objections.? North Coast, 44 Cal.4th at 1159.17 That is exactly what Minton admits Dignity Health did; it did not allow the procedure at Mercy due to Catholic doctrine, but it arranged for the procedure to be performed at another, ?non-Catholic Dignity Health hospital? just three days later. (Compl. ?ll 24.)18 D. The State and Federal Constitutions Bar Minton?s Claim 1. A Court May Not Compel a Religious Hospital to Violate Religious Doctrine A private Catholic hospital may not be compelled to perform a procedure that it believes is prohibited by religious doctrine that is binding on the hospital.19 As a result, Minton?s claim is ?3 councils/ii vatican council/documents/vat? ii cons 1965 l207 audium?et?s es (Vatican Council ll, Pastoral Constitution of the Church in the Modern World, n. 3% lempiiasrs alldedll. 1'7 The Court also held that the practice could avoid liability by refusing ?to perform the lUl medical procedure . . i for any patient of North . . The complaint neglects to allege whether Morton?s ph srcian Dr. Dawson, had admitting at other secular hospitals in Sacramento that would have al owed herto erform Minion?s hysterectomy. . inton certainly does not allege thatpn Dawson practiced exclusrve'y at Mercy. The ACLU has conceded that it is inappropriate to require the provrsion of certain procedures where 9 MEMORANDUM OF AND AUTHORITIES IN SUPPORT OF DEMURRERS 43MBArrosuers Ar LAW Lots ANGELES barred because he seeks to interfere With Mercy?s constitutional rights to free exercise of religion and expression. Minton?s lawsuit ignores the courts? uniform recognition that private religious hospitals and physicians may not be forced to provide procedures contrary to their religious principles. See Allen, 361 F. Supp. at 1213-l4 (plaintiff?s desire for postpartum contraceptive tubal ligation did not create emergency or overriding interest justifying court intervention in the Catholic hospital?s policies); Conservatorship of Morrison, 206 Cal.App.3d 304, 311 physician should be forced to act against his or her personal moral beliefs if the patient can be transferred to the care of another physician who Witt follow the [patient?s] direction?); Chrismao, 506 F.2d at 312 (??There is no constitutional objection to the decision by a purely private hospital that it will not 3? permit its facilities to be used for the performance of abortions (citation omitted). For more than forty years, Courts have recognized the paramount conscience rights of religious hospitals. Although the older cases do not address transgender surgery, that is a distinction without a difference. For the Catholic Church, transgender surgery, abortion, and contraceptive sterilization raise the same ethical and doctrinai concerns. Minton?s claim fails in the face of this uniform case law. 2. The Relief Sought Would Violate Constitutionally Protected Free Exercise and Free Expression Rights. The right to free exercise of religion is enshrined in the state and federal constitutions. Cal. Coast, art. I, 4 US. Const, Am; PeopZe v. Woody, 61 Cal.2d 716, 718, n.1, 727 (1964) (religious freedom is ?guaranteed? under the California Constitution, and ?the right to free religious expression embodies a precious heritage of our history?). The right to freedom of doing so would ?compel devout Catholics to enga in behavior . . . in Violation of their Faith.? See ACLU Amicus Brief in Benitez'v. North Coast Women are Medical Group, Cal. No. 8142892 (A r. 2, 2007), 2; ACLU Animus Brief in Catholic Charities ofSacramergto v. Sop. CL, Cal. S.Ctj. No. 09982 (Jan. 1 ., 2001) p. 37. in argum for the Religious Freedom Restoration Act 42 U.S.C. the ACLU stated that RA was plainly intended to protect religious organizations like Petitioners here from being forced to partimpate in the provrsron of healthcare benefits that con?ict With their religious beliefs.? Nadine Strosscn, then preSIdeut of the ACLU, testi?ed in support of RFRA, noting that the statute safeguarded ?such familiar practices? as ?permirrin religiously sponsored hospitals to dec inc to rovide abortion or contraception ?services.? The Reel: ious reedom Restoration Act: Hearing on S. 29 9 Before the S. Comm. on the JudiCiary, 1. 02d Cong. 2 (1992) (Prepared Statement ofNadine Strossen, pp. 80-81 (emphasrs addedg), egacy/20 14/07/1 3/hcar?99~ i 992pdf. 10 MEMORANDUM OF AND AUTHORETIES IN OF DBMURRERS inMANATT, PHELPS a PHILUPS, LLP ATTORNEYS Ar LAW LOS ANGELES expression is also constitutionally protected. Cal. Const, art. 1, 2; US. Const, Am. As a result, the California Supreme Court applies strict scrutiny to state laws that burden a defendant?s religious beliefs under the California Constitution.20 Catholic Charities of Sacramento 12. Sup. Ct, 32 Cal.4th 527, 562 (2004); North Coast Women 15' Care Med. Grp. v. Sup. Court, 44 Cal.4th 1145, 115869 (2008); Smith v. FEHC, 12 Cal.4th 1143, 1178 (1996). Under strict scrutiny, no law (or court order) can be applied ?in a manner that substantially burden[s] a religious belief or practice unless the state show[s] that the law representls] the least restrictive means of achieving a compelling interest or, in other words, [is] narrowly tailored.? Catholic Charities, 32 Cal .4th at 562. Minton, who received the procedure within three days at another Dignity Health hospital, clearly cannot make that showing. Here, Minton seeks to force Mercy to violate the ERDS by permitting a procedure that Mercy concluded was not permitted under Catholic doctrine and that would be contrary to its religious mission of treating each patient with love, respect, and dignity. Under Catholic doctrine, this does not include surgical sterilization through the removal of a patient?s healthy organs. Mercy could not comply with such an order without forsaking its Catholic ultimate burden in a religious freedom case and conveying the symbolic message that gender transition surgery is consistent with the healing ministry of Jesus. See id. at 558-59 (constitutional right to free speech protects against compelled symbolic messaging). Moreover, any such order could lead to enforcement of the ERDs by the local Catholic Bishop, who could formally withdraw Mercy?s Catholic status and sanction the women religious who administer the hospital. As a result, any such order would be a massive burden on Mercy?s constitutional rights of expression, as the hospital itself is an expression of Catholic belief and message symbolizing the healing ministry of Jesus to which it is always been dedicated. See Texas v. Johnson, 491 20 Employment Division, Dept. ofHuman Resources of Oregon 1). Smith, 494 US. 872, 881~ 1990), is not to the contrary. There, the Supreme Court sug?gested that strict scrutiny applies only to ?hybri claims involving both the Free Exercrse Clause an another federal constitutional right. As discussed herein, the rehef_M1n_ton requests interferes With Mercy?s constitutional r1 ht of free expressron as well as its free exercrse rights. At an rate, Smith rs limited in application to indiv1duals,? not to the Catholic church. Smith, 494 US. at 87 -79; EEOC 12. Catholic Univ. ofAm., 83 F.3d 455, 462 (DC. 1996) (?it does not follow . . that Smith stands for the that a church rnay neyer be relieved from [1 an obligation [to con?plji; with a neutral law of genera applicability (em haSis in original). Finally, Mercy?s risk of losing its at 0110 identity is far more than a mere ?moi ental? urden. ll MEMORANBUM OF POINTS AND AUTHORITIES 1N SUPPORT OF DEMURRERS LAW hos ANGELFS US. 397,, 404 (1989) (symbolic speech is protected. by the First Amendment where intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed Kelly 12. Methodist Hosp. 22 Ca1.4th 1108, 1122 (2000) (?Health care is a social service that historically has been associated with religious groups, and plaintiff does not dispute that Hospital?s founders were motivated by a sincerely held belief that healing the sick serves to advance the religious principles of the Methodist faith?); of First Covenant Church ofSeatz?lc v. City ofSeatZIe, 840 P.2d 174, 182 (Wash. 1992) (en banc) (a cherch building itself is ??freighted with religious ntieaningm and protected by the First Amendment?s protections of free speech). The Supreme Court has held that public accommodation laws cannot be applied Where they violate constitutional rights. in Boy Scouts ofAmer. v. Dale, 530 US. 640 (2000). the Supreme Court held that applying New ersey?s public accommodations law (similar to the Unruh Act) to require the Boy Scouts to admit a gay scoutrnaster violated the Boy Scouts? First Amendment right of expressive conduct. Id. at 640. The Court held that forcing the Boy Scouts to accept the scoutmaster would ?force the organization to send a message? contrary to its expressed views against promoting homosexuality thereby impermissibly burdening the Boy Scouts? expressive rights.21 Id. at 653; see also Hurley 12. Irish~American Gay, Lesbian and Bisexual Group ofBoston, US. 557 (1995) (Massachusetts? public accommodations law could not be applied to force parade organizers to admit openly gay parade unit because it posed an impermissible burden on constitutional rights). California courts have reached the same conclusion. 111 Hart v. Cult Awareness Network, 13 Cal.App.4th 777 (1993), the plaintiff Scientologist sued when he was refused membership in defendant Cult Awareness Network a nonprofit that educates the public about the harmful effects of mind control practiced by cults. Id. at 781~82. The court found that applying the Unruh Act to compel CAN to accept the plaintiff as a member would ?place a heavy burden on both types of constitutionally protected freedom of association under the federal and California Constitutions.? Id. at 790. The 2] The content?of the protected View is not relevant: ?["ijhe fact that an idea ma be embraced and advocated by increasing numbers of peeple rs all the more reason to protect the 11st Amendment rights of those who Wish to voice a different View.? Id. at 660. 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS MANATT, PHELPS 8: PHILLIPS, Ar LAW Loo A Heath?s court found no compelling state interest to justify the application of the Unruh Act, noting that ?compelling to accept Scientologists as members would be tantamount to governmental sponsorship or promotion of one group?s religious beliefs at another group?s expense,? which is prohibited under the Establishment Clause. 1d. at 791. Moreover, the Court found that ?because the state is prohibited from any of?cial involvement that promotes religion, or prefers one religion over another, the Unruh Civil Rights Act could not be applied under the circumstances of this case without violating the religion clauses of the California Constitution.? Id. at 792. Here, compelling Mercy to perform a transgender surgery would force a Catholic hospital to send a message contrary to Catholic doctrine and thus would interfere with its constitutional right of free expression. Likewise, the relief requested by Minton is an order compelling symbolic speech. ?[T]he First Amendment, subject only to narrow and well?understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. [Citations omitted] Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. [Citations omitted] Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. [Citations omitted] umer Broad. Syn, Inc. v. FCC, 512 US. 622, 6414-12 (1994); Riley v. National Federationfor the Blind ofN.C., 11/20., 487 U.S. 781, 798 (1988) (Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny). Minton cannot demonstrate any compelling state interest sufficient to override Mercy?s constitutional religious freedom. Even if his Unruh Act claim did not fail on its own terms, the minimal impact on the state?s interest from the short delay in the procedure is far outweighed by Mercy?s constitutional rights. See Woody, 61 Cal.2d at 7?18 n.1, 727 (religious freedom is ?guaranteed? by the constitution, such that ?[t]he scale tips in favor of the constitutional protection?). 3, The Relief Minion Seeks Would impermissibly Involve the Court in Church Affairs and Matters of Church Governance. The relief sought would also excessively entangle the Court in Catholic religious doctrine 13 MEMORANDUM 0? POINTS AND AUTHORITIES 1N SUPPORT OF DEMURRERS MANATT, PHELPS (it PHILLIPS, LLP ATTORNEYS Ar Law LOS ANGELES and impermissibly intrude on matters of church governance. Means, 2015 WL 3970046, at *12. In Means, the plaintiff claimed that the sponsors of a Catholic healthcare system acted negligently by adopting the ERDS as hospital policy. Id. at Noting that the ?application of the is ?inextricably intertwined with the Catholic Church?s religious tenets,? the court dismissed the action because the court would he required to interpret the ERDS to determine whether their application constituted negligence. Id. at 3. Though Minton artfully pleads his claim to avoid mention of Mercy?s Catholic identity and the ERDs, he effectively alleges that Mercy discriminated by adhering to the ERDs. As in Means, to rule on such claims, the Court would be required to interpret and scrutinize the ERDS, for example, by determining whether decisions to allow or disallow a procedure to remove a healthy organ is not permitted by the ERDs. in addition, the order sought by Minton would directly interfere with the highly structured church governance structure, including the ERDs, which are enforced on Mercy by the Bishop of Sacramento. New 12. Krocgcr, 167 Cal.App.4th 800, 815 (2008) (?Civil courts cannot interfere in disputes relating to religious doctrine, practice, faith, ecclesiastical role, discipline, custom, law, or polity?); Nelly v. Grace Comm. Church, 47 Cal.3d 278, 299 (1988) (refusing to impose a duty of care on pastors). Religious organizations are guaranteed ?an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.? Keclro?v. Saint Nicholas Cathedral, 344 US. 94, 116 (1952); Catholic Univ, 83 F.3d at 463 (?the Free Exercise Clause guarantees a church?s freedom to decide how it will govern itself, what it will teach, and to Whom it will entrust its ministerial responsibilities . . It is not permissible for the Court to impose upon a hospital that is part of the Catholic church the obligation to allow its facilities to he used for procedures that are contrary to Catholic religious beliefs thereby interfering with the Church?s ability ?to shape its own faith and ministry? through administrative restrictions on the types of procedures that may be performed with its facilities. See cg, Hosanna~Tahor Evangelical Lutheran Chach and Sch. 1). EEOC, 565 US. 171, 188-89 (20l2); Trinity Lutheran Church ofColumbia, Inc. v. Comer, S. Ct. w, 20l7 WL 2722410, at n. 2 (US. S. Ct. lune 26, 2017) (citing Hosanna~Tabor and noting that 14 MEMORANDUM OF POINTS AND lN SUPPORT OF DEMURMERS 4}.MANATT, Pastas 6.: LLP ATTORNEYS AT LAW Les Atacama a valid and neutral iavv of general applicability is not necessarily constitution under the Free Exercise Clause of the US. Constitution where it interferes with ?an internal church decision that affects the faith and mission of the church itself Here, any order compeliing Mercy, an official part of the Catholic Church, to perform a sterilization procedure through the removal of healthy organ that is not permitted under the ERDs, the rules laid down by the United States Conference of Catholic Bishops and to which all Cathoiic hospitals inust subscribe would obviously interfere with internal decisions of the Church that affect its faith and mission. Therefore, such an order must satisfy strict scrutiny which is not possible, particularly Whereas here Dignity Health was able to immediately arrange for the surgery to be performed at a non-?Catholic hospital. ?The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its ?unhailowed perversion? by a civil magistrate.? Engel v. Vitale, 370 US. 421, 431?82 (1962). Because ?the state is prohibited from any official involvement that promotes religion, or that prefers one religion over another,? the Unruh Act cannot be applied here Without violating constitutional reiigion clauses. See Hart, 13 Cal.App.4th at 792 (citation omitted). ?Improper government involvement with religion ?tends to destroy government and to degrade reiigion,? encourage persecution of religious minorities and nonbeiievers, and foster hostility and division in our pluralistic society.? Intern ?l Refugee Assistance Project v. Trump, 857 F.3d 554, 604 (4th Cir. 2017) (citing Engel), cert. granted, No. 164436 (June 26, 2017). A court order compelling a Catholic hospital to perform procedures to which it is moraily and ethically opposed is a violation of the Estabiishment Clause?s protection from unwarranted government intrusion. CONCLUSION Minton?s claim fails as a matter oflavv for multiple reasons and is incurably defective. The Court should sustain Dignity Health?s demurrer without leave to amend. Dated: July 3, 2017 MANATT PH ?iers/fey L. M, ?i?mrne for Defendant HEALTH 15 By: MEMORANDUM OF POINTS AND 1N SUPPORT OF DEMURRERS