Trump appointee denies HIV-positive litigant’s anonymity request

A federal appellate judge appointed by former President Donald Trump recently denied the anonymity request of an HIV-positive litigant, even though the lower court granted the man’s request and the opposing party doesn’t object to him litigating anonymously.

On April 23, Third Circuit Judge Stephanos Bibas denied the request of “John Doe” to litigate anonymously in his case against the U.S. Postal Service. Doe was a postal worker in Allentown for about 12 years prior to being fired in 2019. He claims wrongful termination due to his LGBT status and HIV-positive status. The postal service says Doe was fired because he allegedly kicked a co-worker.

In April 2020, U.S. District Judge Joseph F. Leeson Jr. granted Doe’s request to litigate anonymously. However, in March 2021, Leeson dismissed Doe’s entire case on a technicality, citing a deadline Doe allegedly missed prior to filing suit.

Doe, who is gay, disputes Leeson’s deadline calculation. On March 29, he filed an appeal with the Third Circuit Court of Appeals, noting that he was referred to by former co-workers as a “sick faggot,” “dick lover,”  “gay boy,” “fruitcake” and someone who “likes to suck big dick.” 

On April 12, Doe filed a request with the Third Circuit to proceed anonymously, pointing out that he’s been litigating anonymously since his initial lawsuit was filed in December 2019.

Doe’s 47-page motion emphasizes the violence, stigma and discrimination that HIV-positive people face in venues such as the workplace, schools, social settings and public accommodations. The motion cites numerous court cases supporting the right of LGBT people and people with HIV/AIDS to litigate anonymously.

Additionally, the motion cites specific acts of violence perpetrated against the LGBT community, including the Pulse Nightclub massacre in Orlando and assaults against gay men in the Philadelphia region. Moreover, the request points out that Doe hasn’t told his family nor the vast majority of his friends about his HIV-positive status. 

“If my true name and address were to be associated with this case, I would feel the need to potentially drop the lawsuit, to avoid being outed to an extent to which I am comfortable,” Doe says, in an affidavit accompanying the motion.

However, on April 23, Bibas issued a two-sentence order, denying Doe’s anonymity request. “The applicant [Doe] has adduced no specific facts suggesting that he in particular faces an unusual risk of harm or discrimination,” Bibas opined.

A spokesperson for Bibas said the judge would have no comment for this update. 

On April 15, attorneys for the U.S. Postal Service filed a four-page document, saying the agency doesn’t oppose Doe’s request for anonymity. “[T]he Postmaster General does not, at this time, substantively oppose Doe’s motion to proceed anonymously on the basis of HIV-positive status,” the filing states. “Nevertheless, the Postmaster General’s opinion is only one of the many factors the Court must consider and balance.”

Neither side had a comment for this story. 

Thomas W. Ude Jr., legal and public policy director for Mazzoni Center, called Bibas’ ruling “startling.”

“By denying appellant’s motion to proceed as ‘John Doe,’ Judge Bibas ignored — and effectively overturned — [Leeson’s] factual findings that stigma and safety risks make it appropriate for Mr. Doe to assert his rights AND protect his identity,” Ude said, in an email. “The decision to terminate that protection is disappointing and startling. Sadly, it is not yet safe for every gay person to be out, nor for every person living with HIV to publicly declare their status. It was not a surprise, therefore, that [Leeson] allowed Mr. Doe to keep his name confidential, finding that the risks he faced outweighed the public’s interest in open court proceedings. Those findings were not challenged. The Third Circuit — the court on which Judge Bibas sits — has explained for many years that a district court’s decision about a litigant’s anonymity should only be overturned if the court abused its discretion. Given today’s reality, many gay men and many people living with HIV will be reluctant [to litigate] if the price of asserting their rights is being outed publicly. No party to Mr. Doe’s case claimed otherwise. But instead of adhering to precedent, the denial second-guesses [Leeson], and now requires Mr. Doe to either drop his appeal or be outed — even though [Leeson] found that he should not have to do so. The denial offers no factual analysis. It suggests that Mr. Doe had not shown ‘that he in particular faces an unusual risk of harm or discrimination’ even though the motion [requesting anonymity] is full of support for the reasonableness of Mr. Doe’s fears based on the well-documented stigma that gay men and people living with HIV face. Those dangers did not end when Mr. Doe filed his appeal. And the protection he’d been given should not have, either. Given the seriousness of this issue —  to Mr. Doe, and to the impact on the ability of other people to assert their rights without losing privacy — overturning [Leeson’s] conclusions about this should have been explained, instead of a one-sentence conclusion that disregards the gravity of the issue presented. LGBTQ people, people living with HIV, and other people needing privacy when protecting their rights, deserve better.”

Jose DeMarco, an organizer with ACT UP Philly, also expressed support for Doe. “I would be really upset if it were me,” DeMarco told PGN. “Why does [Bibas] want to put [Doe’s] name out there? What does the gentleman’s name have to do with the merits of this case? It’s been litigated anonymously since 2019. Why out him now? This adds fuel to the fire for HIV criminalization. After they get our names, what else do they want to do with them? This judge seems to have very little regard for laws that protect sensitive health information.”

DeMarco added: “I’m totally at a loss why this judge is giving this gentleman such a hard time. Why would he want to ruin someone’s life like this? ACT UP wants Mr. Doe to be able to proceed with his lawsuit and not lose his privacy.”