Transgender police officer who alleged she was involuntarily outed advances claims

By Brandi O. Brown, J.D.

A male-to-female transgender police trainee who has been diagnosed with gender dysphoria will proceed to discovery with claims against some, but not all, of the defendants after a federal district court in Illinois granted, in part, their motion to dismiss. Her Section 1983 claims were premised on an alleged violation of her substantive due process right to medical privacy and the defendants’ failure to supervise sheriff’s office personnel and protect her from discrimination and harassment. Specifically, she contends that by outing her as transgender, the defendants essentially revealed her medical history, which included gender confirmation surgery and hormone treatments. Her gender discrimination claim under the Illinois Civil Rights Act also moved forward, as did her indemnification count (Arriaga v. Dart, October 23, 2021, Kendall, V.).

Under the radar. While she was undergoing treatment for gender dysphoria, the employee secured a job as a police officer for the Northeast Regional Commuter Railroad Corporation (Metra) and enrolled in the Cook County Sheriff’s Police Academy. At the time, she alleged, she was “living in stealth,” i.e., she was living as a transitioning person without disclosing that fact publicly. She sought to keep her male-to-female transgender identity and associated medical treatments private.

Her transgender status was disclosed. Nevertheless, when she entered the Academy the defendants disclosed her identity as a transgender woman to Academy administrators and staff, police chiefs in municipal departments, and her superiors and coworkers. The defendants include the Cook County Sheriff, Metra, Cook County, the Metra Police Chief, the Metra Deputy Chief, and four other individuals who hold supervisory roles at the sheriff’s office and police academy.

She also alleged that recruits who went through academy with her disseminated information about her gender identity amongst themselves and to another Metra police officer, although she was not aware of the full extent of those disclosures until later.

Alleged it revealed her history. This disclosure, the employee alleged, effectively revealed her psychiatric condition and her history of procedures. She contended that her feminine voice and appearance could only be achieved through gender confirmation surgery and hormone treatments and such procedures are only available to people who suffer from gender dysphoria. Therefore, she contends, these disclosures were equivalent to revealing her confidential medical history.

And led to inquiries, jokes, and slurs. Moreover, she alleged, the disclosures led to discrimination and harassment by fellow recruits, including taunting, jokes, and inquiries about the procedures and her protected status, both in-person and over group chats. For example, she alleged that her colleagues distributed an older photograph of her as a male prior to transition that had been found on Facebook. A fellow recruit also referred to her by a transphobic slur, she alleged. These actions caused her significant psychological distress.

Alleges no remedial action. She contends that she reported the offensive conduct to the defendants, who took no remedial action and concealed the fact that it failed to discipline any of the offending parties. She claims that these failures perpetrated the ongoing practice of private medical information dissemination and harassment and she alleged that she was mistreated based on her gender until she graduated from the academy in August 2018. She filed suit and after a previous dismissal, filed an amended complaint. The defendants again moved to dismiss and their motions were granted in part and denied in part.

Section 1983 claims. The employee’s claims under Section 1983 originate in the defendants’ disclosure of her transgender status, and her attendant medical history, in violation of her substantive due process right to medical privacy, as well for failure to supervise and protect her from violation of those rights. Metra, the Cook County sheriff, the Metra police chief, and the Metra deputy chief argued that those two counts against them should be dismissed. The employee argued that the Metra police chief and the Cook County Police Academy Director were both final policymakers under state law and were subject to liability.

Metra chief’s policymaking authority, personal involvement. Although in her previous complaint the employee’s claim against the Metra Police Chief was dismissed, this time around she cured the complaint’s deficiencies in that regard. Although the Chief alleged that final policymaking authority rested with Metra’s Executive Director under state law, that law permitted the delegation of policymaking authority and the employee cited sufficient evidence in her complaint to support the claim that such authority was delegated to the Metra Police Chief.

The employee also alleged sufficient personal involvement by the Chief by alleging that he disclosed her medical information, which was private, disclosed without her permission or without a significant motivating government interest, and was equivalent to a medical disclosure given her presentation as female. Such disclosures constituted a violation of the Fourteenth Amendment due process clause.

No prevention and indifference. The employee also detailed how he failed to instate a policy to prevent his subordinate, the Deputy Chief, from discussing her transgender identity with academy officials or to sanction him once he had done so, which she alleged exhibited a deliberate indifference to the known risks of that conduct. Both counts were sustained against Metra, the Chief, and the Deputy Chief. However, that claim as against the Cook County Police Academy director could not proceed, the court concluded, because there was not “factual detail to gird this contested claim.” Both counts were dismissed as to Cook County.

County Sheriff. Regarding the argument that the absence of a policy could not support the employee’s Monell claim against the County Sheriff, the court explained that liability could still attach under certain circumstances regarding a policy omission. “When a municipality is on notice of a pattern of unconstitutional practices,” the court noted, “it may be held liable on the theory that the ‘decision not to train certain employees about their legal duty to avoid violating citizens’ rights” is tantamount to an official policy of condoning constitutional violations.’” According to the employee she complained to the Sheriff, but he exhibited not only deliberate indifference by not responding but also bad faith by attempting to conceal that unresponsiveness. She alleged that her complaint put the municipality on notice of the violations of her due process rights.

Not a single incident. Moreover, the allegations in the employee’s complaint were not limited to a single incident, which the defendants claimed undermined her policy omission claim. Rather, the facts she alleged comprised “continual harassment sufficient to establish an empirical pattern of conduct.” She alleged she was repeatedly outed, taunted based on her transgender status, and called a transphobic slur over a sustained period of time. Thus, she did not need to rely on a single-incident theory of Monell liability, as the defendants had contended.

Was predictable. Also, while the Sheriff argued that the harassment she endured was not a “highly predictable consequence” of his failure to have preventative policies, that argument was not persuasive. “To the contrary,” the court noted, “recent data indicates that over half of transgender persons experience workplace discrimination and the frequency of such discrimination has been highly publicized in recent years,” as the employee had pointed out. Thus, it stood to reason that, regardless of the employee’s status as the first transgender recruit, it was plausible that the Sheriff should have been on notice of the prevalence of such discrimination and should have established policies to forestall it or to respond to it when reported.

Illinois civil rights claims. Regarding the employee’s claim for a violation of the Illinois Civil Rights Act by the defendants, the argument that her claim should fail because she did not offer sufficient evidence of personal animus was misplaced. Discriminatory intent, the court explained, is not a necessary element of discrimination under the ICRA, which is modeled on Title VI. Her description of a hostile work environment, if accepted as true, was sufficient to state a claim.

Because her ICRA claim and federal claims under Section 1983 survived against some of the individual defendants, her indemnification claim against Metra and Cook County also survived.