New judge assigned to Penn antibias case

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A new federal judge has been assigned to the case of “Jane Doe,” a transgender woman who’s suing the University of Pennsylvania for alleged anti-trans bias and wrongful termination.

U.S. District Judge Karen S. Marston will replace U.S. District Judge Mitchell S. Goldberg in the case, it was announced on Feb. 27. “Jane Doe,” claims she was mistreated during a routine medical procedure at the Hospital of the University of Pennsylvania on Feb. 20, 2018. After the incident, she claims she had difficulty returning to work because the hospital exacerbated her gender dysphoria, Four months later, HUP fired her. She filed a federal antibias lawsuit against Penn in July 2019.

On Aug. 14, 2019, President Trump announced his intent to nominate Marston to serve as a federal judge for the Eastern District of Pennsylvania. On Sept. 9, 2019, her nomination was sent to the U.S. Senate. On Dec. 19, 2019, her nomination was confirmed by a Senate vote of 87–6. 

“Karen Marston has served her communities admirably as a 5th-grade school teacher, law professor and federal prosecutor,” U.S. Senator Robert Casey (D-Pennsylvania)  said in a statement released after Marston’s Senate confirmation.

In a questionnaire from U.S. Senator Dianne Feinstein (D- California) prior to her confirmation, Marston said she would honor the request of a transgender plaintiff, defendant or witness who wished to be referred to in accordance with that person’s gender identity. 

Marston previously served as an assistant United States attorney in the United States Attorney’s Office for the Western District of North Carolina, receiving the Department of Justice Director’s Award in 2002. From 2010–19, she served as an assistant United States attorney in the United States Attorney’s Office for the Eastern District of Pennsylvania, where she was chief of the office’s Narcotics and Organized Crime section. She has also served as an adjunct professor at Temple University Beasley School of Law.

In her new role, Marston must rule on a request by Penn to dismiss major portions of Doe’s case, including her allegations of negligence and recklessness. Penn maintains those allegations would be more appropriate in a medical-malpractice suit, which Doe hasn’t filed.

Penn defendants also want Marston to dismiss a bias claim Doe filed under the Americans With Disabilities Act, on the basis that Doe hasn’t shown that her gender dysphoria limits her life activities. Doe’s rebuttal filing emphasizes the ways her gender dysphoria limits her life activities.

“[Doe] has alleged substantial limitation of major life activities, including the fact that she couldn’t go to work because of her gender dysphoria and couldn’t socialize because of gender dysphoria — and defendants’ failure to recognize it — misgendering her and manhandling her while she was a patient. These important occupational and social functions were substantially limited by her gender dysphoria and defendants’ discrimination against her because of it,” the rebuttal brief states.

Additionally, Doe’s filing asserts that Penn defendants never discussed providing reasonable accommodations for her gender dysphoria. “Defendants have never discussed nor offered reasonable accommodation for Ms. Doe’s disability,” the filing states. “HUP and the other defendants acted with malice and/or reckless indifference, including but not limited to acting with transphobic hatred. After the [medical procedure] incident, Ms. Doe’s gender dysphoria flared up and she experienced difficulty in returning to HUP, her workplace — understandably, given her treatment at the hands of defendants. HUP knew, yet failed to make reasonable accommodations for her, then illegally fired her on June 28, 2018. Ms. Doe could have been reasonably accommodated but for her employer’s lack of good faith.”

Doe is seeking an unspecified amount of damages and a jury trial. As of presstime, Penn’s request to dismiss major portions of Doe’s case remained pending with Marston. Neither side had a comment for this update.