Plasma Group Must Face Trans Bias Claim

(CN) - A federal judge advanced claims that a Minnesota plasma center discriminated by refusing to let a transgender woman donate.

In her 2013 complaint, Lisa Scott said a CSL Plasma nurse "physically recoiled" upon learning she had had gender-reassignment surgery and was taking hormones, then told her that CSL did not take plasma from her "type."

From the outset of her opinion denying CSL Plasma summary judgment on Thursday, however, U.S. District Judge Joan Erickson noted that the larger issues of fairness and policy are not at issue.

"This decision concerns only whether, in this particular instance and on the record before the court, there are any genuine disputes of material fact for a jury to consider," Erickson wrote.

The undisputed facts, according to the ruling, are that Scott went through the screening process to donate plasma to CSL, which uses donors' plasma in medications and compensates them for the time they spend being screened and having plasma extracted.

When the nurse discovered Scott was transgender and was undergoing the accompanying medical treatments, CSL permanently barred her from donating "due to sex change operation and hormone replacement medication," the opinion states.

CSL had moved for summary judgment in August on a handful of bases, but Erickson rejected all of them.

Citing her past ruling against CSL's motion for judgment on the pleadings, Erikson refused to let the company argue that plasma donation is not a "business transaction" as described in Minnesota discrimination law.

Even though compensation is technically for donors' time and not for the plasma CSL collects, donors are still receiving money after giving CSL plasma to sell for a profit, the ruling states, according to the ruling.

Further, there remains a dispute as to whether CSL's discrimination serves a "legitimate business purpose," Erickson wrote.

The decision notes that Scott underwent screening weeks before CSL enacted a new protocol that barred most transgender people from donating. At the time of Scott's screening, the protocol called for the nurse to call corporate for guidance on Scott's eligibility. The nurse has testified that she did not make that call.

Scott also claims that the nurse rejected her with "personal animus," something the nurse denies. In telling Scott, "[you] people can't give plasma," the nurse listed a series of high-risk behaviors such as having sex with men and taking drugs in which she assumed Scott had engaged because she is transgender, according to Scott's complaint.

Scott has testified that she has never had sex with a man, never used intravenous drugs, and does not in any other respect fit the criteria listed in guidance that the Food and Drug Administration issued in 1992.

Though CSL argued that FDA regulations pre-empt the lawsuit, Erickson said no regulation at the time of Scott's screening prohibited a transgender person from donating plasma.

The FDA's recommendations "further specify that in the screening process, the 'focus should be on behavior and not on stereotypes,'" Erickson wrote.

"For all of CSL's asserted reasons why it can legitimately reject all transgender donors, it is not clear from this record that, as of November 17, 2008, it did reject all transgender donors or that its medical staff made a judgment call in this case to reject Scott," Erickson added (italics in original).

A settlement conference is scheduled for Friday, Dec. ¸at 1 p.m. Both parties must be "ready for trial" by Feb. 26, 2016, according to online court records.

Scott's attorney, John Klassen, has not returned a voicemail requesting comment.

CSL's attorney, Ashlee Bekish with Ogletree, Deakins, Nash, Smoak & Stewart, was not available when reporters called for comment. Reached by phone, Bruce Douglas, listed as co-counsel, said he and Bekish had no comment.

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