Gay, HIV Status Doesn’t Compel Anonymity

NEW ORLEANS (CN) - An HIV-positive gay man who sued his employer for discrimination cannot do so anonymously because his HIV-positive, homosexual status provides him "no greater threat of retaliation" than a typical plaintiff alleging employment violations, a federal judge ruled.

John Doe asked the court to keep his own name out of a lawsuit he filed against his employer, alleging violations of the Americans with Disabilities Act.

Doe described himself as "'an HIV positive homosexual male with an understandable fear that if his health status is made public, it will negatively affect his life in multiple ways,"' U.S. Magistrate Judge Joseph C. Wilkinson Jr. wrote in his Sept. 5 "Order and Reasons," citing Doe's request for leave to use a fictitious name and for a protective order.

"Weighing these factors in the instant case militates against permitting this plaintiff to proceed anonymously," Judge Wilkinson wrote. "Although sexual preference is certainly a personal matter and homosexuality is one of the 'matters of a sensitive ... nature' identified in the above-cited Fifth Circuit opinion, public opinion about both homosexuality and HIV positive status has become more diverse and accepting during the 35 years since that decision. Certainly, only the seriously uninformed today act under the erroneous impression that HIV transmission might occur in ordinary workplace activity."

Other plaintiffs whose sexual preference might be an issue have filed lawsuits "publicly and in their own names," Wilkinson wrote.

Finally, the judge found that Doe is "not a child or incompetent person requiring extraordinary protection."

However, "Defendants - whose names have already been published in the court's record - have been the subject of public accusations by plaintiff that may do damage to their good names, reputation and economic standing."

Citing a 2004 5th Circuit ruling, Wilkinson noted that neither the Supreme Court nor the 5th Circuit has ever designated sexual orientation a protected class, "despite opportunities to do so."

The judge found that Doe faces "no greater threat of retaliation than the typical plaintiff[s] alleging Title VII violations ... under their real names and not anonymously."

Doe's concerns about possible harm are outweighed by the public's interest in open judicial proceedings and "basic fairness," which stipulates that the sorts of accusations made by plaintiff against named defendants must be made by named plaintiffs, the judge ruled.

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