Courts are generally inclined to allow litigants to remain pseudonymous to conceal their being transgender (see The Law of Pseudonymous Litigation, p. 1406); but they are also inclined to deny pseudonymity once the plaintiff had already identified himself or herself, and this is what made the difference in yesterday's decision by Judge John Gallagher (E.D. Pa.) in T.D.H. v. Kazi Foods of N.J., Inc.:
Plaintiff, a transgender woman, seeks to proceed anonymously on claims against her former employer arising out of alleged discrimination, harassment, and assault in the workplace. Although Plaintiff's status as a transgender woman of color places her at risk of violence and discrimination, the factors considered by Third Circuit courts in deciding motions to proceed anonymously weigh against anonymity, largely due to Plaintiff's failure to keep her identity confidential in both the Complaint and a similar lawsuit filed last year. As such, the Court does not find this is one of the "exceptional cases" warranting a breach of "the public's common law right of access to judicial proceedings" where Plaintiff should be permitted to proceed anonymously….
Although "[p]roceeding under a fictitious name is an unusual measure reserved for exceptional cases," this Court takes seriously the "private and intimate nature of being transgender as well as the widespread discrimination, harassment, and violence faced by these individuals." Doe v. Shawnee Holding, Inc., No. 3:21-cv-01037, 2022 U.S. Dist. LEXIS 46042 at *2-3 (M.D. Pa. Mar. 15, 2022) (quoting Doe v. Ind. Black Expo, Inc., 932 F. Supp. 137, 139 (S.D. Ind. 1996))[;] … Doe v. Genesis Healthcare, 535 F. Supp. 3d 335, 339 (E.D. Pa. 2021). Accordingly, despite Plaintiff's failure to seek leave to proceed under a pseudonym, as noted in Defendants' Motion to Dismiss, the Court instructed Plaintiff to file a motion to proceed under pseudonym at the Initial Rule 16 Conference, which Plaintiff did file on June 21, 2023. The Court carefully considers Plaintiff's Motion according to the nine factors identified by Third Circuit courts.
This first factor, the extent to which the identity of the litigant has been kept confidential, weighs strongly against proceeding anonymously. Plaintiff's Complaint reveals Plaintiff's last name and initials in the case caption, and then Plaintiff's preferred first name in paragraph 11. Moreover, as Defendants' Response identifies, Plaintiff filed a similar employment discrimination lawsuit against a different defendant in January 2022, wherein she did not proceed under a pseudonym. See Response at pg. 2 of 11. Plaintiff's decision not to keep her identity confidential in a similar lawsuit filed last year, along with Plaintiff's decision to reveal her last name, middle initial, and preferred first name in this action's Complaint, strongly weigh against proceeding anonymously. See B.L. v. Featherman, No. 22-3471, 2023 U.S. Dist. LEXIS 21118 at *8-9 (D. N.J. Feb. 8, 2023) (denying Plaintiff request to proceed in pseudonym where complaint detailed events that identified plaintiff).
