Pseudonymity Allowed in Case Challenging NCAA's Rules Allowing Transgender Contestants in Women's Sports

Monday's decision in Gaines v. NCAA by Judge Mark Cohen (N.D. Ga.), allows two plaintiffs in a challenge to NCAA's transgender eligibility policies to proceed pseudonymously:

Although [federal law] creates a "strong presumption in favor of parties proceeding in their own names …, the rule is not absolute. A party may proceed anonymously by establishing 'a substantial privacy right which outweighs the 'customary and constitutionally embedded presumption of openness in judicial proceedings.'" …

[T]he Court finds that the allegations in this case concern matters of personal beliefs and positions that could subject the Doe Plaintiffs to stigmatization, ostracization, retaliation, and violence. Specifically, Plaintiffs take the viewpoint that transgender women "have inherent physical advantages" over cisgender women and should not be allowed to compete in single-gender athletic contests "as a matter of fairness." Because this lawsuit involves personally held beliefs regarding gender identity, the Court finds that disclosure of the Doe Plaintiffs' identities would be tantamount to compelling them to "disclose information of utmost intimacy."

Furthermore, Plaintiffs have also offered declarations of Plaintiffs Riley Gaines and Lily Mullens, as well as members of faculty and administration at various universities, testifying to the retaliation, threats, and stigmatization they experienced as a result of voicing their opinions on the transgender-athlete controversy. See, e.g., Decl. of Riley Gaines (averring that she was trapped in a small office for three hours while protestors yelled profanities at her, including calling her transphobic). The Court finds that Plaintiffs have submitted sufficient evidence that the Doe Plaintiffs would likely face adverse reactions in their communities should they be required to disclose their identities at this time. While the Court is mindful that "personal embarrassment alone is not enough for leave to proceed anonymously," "the Court recognizes the unique sensitivities that exist within the current political climate and social context," and finds that leave to proceed pseudonymously is appropriate in this case….

Of course, defendants would be entitled to learn pseudonymous plaintiffs' names, under a protective order, since otherwise they would be unable to effectively defend the case; the ruling is aimed at protecting the pseudonymous plaintiffs from being identified to the public.

The court also allowed the plaintiffs' declarations to be substantially redacted to protect their pseudonymity:

Plaintiffs contend that, although they "desire to provide the Court with predicate facts" to support their Pseudonym Motion, the information provided in the declarations, including the Doe Plaintiffs' colleges, teams, coaches, teammates, athletic directors, and events that occurred on their campuses "could potentially lead to the discovery of their identity if made publicly available." For the reasons addressed above with respect to Plaintiffs' Pseudonym Motion, including the intimate nature of Plaintiffs' personally held beliefs and the fear of stigmatization, academic and professional retaliation, and violence, the Court finds that Plaintiffs have a legitimate privacy interest in protecting the information, and that this interest outweighs any common-law right of access the public may have in this information. Accordingly, the Court finds good cause exists to seal the unredacted versions of the Declarations of Swimmer A and Track Athlete A.

Whether plaintiffs' desire to avoid political hostility, ostracism, and possible blacklisting suffices to justify pseudonymity is an unsettled question (as is so much in the law of pseudonymous litigation). Here's what I wrote about this in May:

Generally speaking, plaintiffs who want to use the civil justice system must sue in their own names, even when that might damage their reputations and professional prospects. Someone suing an ex-employer, for instance, may worry that future employers might not want to hire a known litigious employee; or he may expect that the employer will argue that he was fired for sexual harassment, theft, incompetence, etc., allegations that will then be connected with his name (even as he argues that they are false and that the real reason for firing was, say, race discrimination). Likewise, a libel plaintiff may worry that the lawsuit will just further amplify the libelous allegations. But that usually doesn't suffice for pseudonymity, unless the plaintiff can show a serious (more than merely speculative) risk of physical harm stemming from being identified, or the case involves a purely legal rather than a factual challenge.

But when the case involves controversial topics that might arouse public disapproval, cases are split. For instance, a recent case rejected pseudonymity where plaintiff argued that his challenge to Twitter policies might draw attacks on his children from "unbalanced people in the world" who "hate President Trump supporters." Another rejected pseudonymity for plaintiffs objecting to a school's "Black Lives Matter" posters. [UPDATE: That decision has since been affirmed by the Eighth Circuit.] But other cases allowed pseudonymity for challenges to school board policies on teaching views associated with Critical Race Theory, or on gender identity. And cases are split as to whether challenges to vaccine mandates may proceed pseudonymously.

Now let's throw in another factor: What if the case is a challenge to a university disciplinary proceeding? When it comes to challenges to sexual misconduct findings under Title IX, most courts have allowed pseudonymity (see Appendices 4a & 4b of The Law of Pseudonymous Litigation), though the Seventh Circuit has just strongly disagreed with that majority view. Should pseudonymity be more broadly allowed in all university disciplinary proceedings, whether or not they involve sexual misconduct?

One past case had indeed allowed pseudonymity where university students had sued over having been disciplined for engaging in actions that were supposedly "racist, anti-Semitic, homophobic, sexist, and hostile to people with disabilities." And now we see something similar in a high-profile case arising out of the anti-Israel protests, Doe v. Columbia Univ. (S.D.N.Y.).

For more on the court's tentative grant of pseudonymity in Doe v. Columbia Univ. (also known as the "wet farts" case), see here.