[*1]

This action involves a claim by plaintiff Tracy Bumpus (Bumpus) against the defendants New York City Transit Authority (NYCTA) and Lorna Smith for, inter alia, violation of the New York City

Human Rights Law arising out of alleged incidents of transgender discrimination.

Presently before the court is NYCTA's motion for an order "directing counsel for plaintiff not to obstruct the defendants' continued deposition of non-party witness, Mr. Magic Wilder... not to instruct counsel for defendants on what questions are allowed" and seeking to impose costs. The relief is

sought pursuant to Section 221.2 of the Uniform Rules for Conduct of Depositions (22 NYCRR 221.2).

Plaintiff cross moves for a protective order pursuant to CPLR § 3103 "precluding Defendants from inquiring any further into Mr. Wilder's sexual orientation, and into the types of sexual acts in which Mr. Wilder or Ms. Bumpus might engage".

This Court is being asked by the NYCTA to allow inquiry into a non-party witness's most personal information i.e. their personal sexual identity. In order to determine whether the Court will exercise it's discretion to permit such inquiry or to issue a protective order barring the inquiry, a review of the facts and basis of the claim is necessary.

Bumpus, a transgender woman, alleges that she was verbally harassed by a NYCTA employee Lorna Smith, when Bumpus was on a NYCTA subway platform.

During her deposition, Bumpus testified that as a result of the incident and the alleged discriminatory conduct of defendants, that her two-year relationship with her partner, Magic Wilder, has suffered. Bumpus testified as follows: [*2]

Because I had felt inadequate. The relationship for the most

part is functioning as a heterosexual relationship. This incident

made me feel insecure about who I was. I didn't want him to

touch me. I didn't want to be bothered because this whole thing

that me being trans and this issue [sic], that had not been issue, became

an issue for me and because of that, you know, I questioned myself.

As a result of this testimony and the fact that Mr. Wilder, will be a witness for the plaintiff, the

defendant sought and the plaintiff produced Mr. Wilder for deposition on February 4, 2009. The portion of the transcript relevant to the motions follows:

MS. WESTCOTT:

Q. The nature of this case requires that I ask a few sensitive

questions, so I'm not going to harass you, but just because

I need to understand in terms of your experience, I will do

the best that I can. You will forgive my ignorance. These

questions go to your identity. You were born a biological

male, weren't you?

A. Yes.

Q. Forgive me but how do you identify?

A. Me?

Q. Yes.

MR. MERJIAN (mistakenly identified as

MR. BACIGALUPI): Objection, if you can answer.

A. I don't know.

Q. Do you identify as a straight male?

MR. MERJIAN : Objection.

A. Yes, I do.

Mr. Wilder

Q. Have you ever identified as a gay or queer

person?

A. No.

MR. BACIGALUPI: objection. We believe that questions with

regard to sexual orientation are highly confidential and

personal nature, irrelevant to the issues in this case

and they tend to be abusive because they border on harassment

since they have nothing to do with the claim.

You have a very limited scope on what you

can ask and can't ask with regard to the claims of the case [*3]

as opposed to the individual sexuality.

MS. WESTCOTT: I adamantly differ. This acknowledges

transgender discrimination. This alleges many things

in terms of how her relationship has been affected and this

is my witness and you are not representing this individual.

I can inquire in this area and I would say that perhaps you

can make a standing objection and I

will you note your objection throughout .

MR. MERJIAN: We disagree you have called

for the deposition. This is the partner of the

plaintiff who will be providing testimony

at trial as the plaintiff's witness to buttress the

claim for loss of consortium. That's part of the damages.

MS. WESTCOTT: You have not alleged that.

You have alleged emotional distress.

MR. BACIGALUPI: It can flow from that. We can

disagree and amend the complaint.

MS. WESTCOTT: We would need to re-depose this

gentleman.

MR. MERJIAN: With regard to your statement that

Ms. Bumpus made all sorts of allegations, she made an

allegation with regard to loss of consortium. If you want

to ask whether or not there was loss of consortium but the

sexual orientation is irrelevant to a loss of consortium claim

There was additional colloque between counsel with plaintiff's counsel suggesting that the deposition continue with questions as to sexual identity reserved for a ruling by the Court. Defendants'

counsel ended the deposition in order to obtain a ruling prior to continuing the deposition. These motions ensued. The relevant provision of the Uniform Rules for Conduct of Deposition 22 NYCRR 221.2 provides as follows:

A deponent shall answer all questions at a deposition, except (i )

to preserve a privilege or right of confidentiality, (ii) to enforce a

limitation set forth in an order of a court, or (iii) when the question

is plainly improper and would, if answered, cause significant prejudice

to any person. An attorney shall not direct a deponent not to answer [*4]

except as provided in CPLR Rule 3115 or this subdivision. Any ... direction

not to answer shall be accompanied by a succinct and clear statement of

the basis therefore....

In its supplemental memorandum of law in support of it's application, the NYCTA makes clear that it seeks to undertake a broad inquiry as "the experience of both plaintiff and the spouse are essential to learning about the general health of that relationship. This is the case without regard to the couple's

background (i.e. black, white, interracial, heterosexual)".

Defendants seek to "explore Mr. Wilder's perceptions and attitudes surrounding his identity and sexual orientation... Sensitivity to a partner's experience undoubtedly reflects a level of emotional intimacy, such context is essential to understanding how a troubling event might affect a relationship".

In a footnote to this argument, defendants' counsel further expands the scope of the inquiry sought:

Questions about sexual frequency and satisfaction are

meaningless unless contextualized: issues surrounding

identity and intimacy are difficult to separate. For example,

in a case involving a black female plaintiff; whose white

male husband has alleged loss of consortium damages,

fair questions might probe: (i) whether the husband had

dated other black woman before plaintiff; (ii) the nature of

the husband's awareness of plaintiff's identity as a black

female; (iii) whether the husband had any views about his

own identity as a white male; (iv) whether the husband

harbored any race-based assumptions about the nature of

intimacy with a black woman. These questions go to a

couple's mutual understanding and intimacy. Similarly,

inquires about alleged loss of consortium between two

devout practicing Catholics might look quite different.

It is axiomatic that it is within the sound discretion of the Court to supervise discovery and set the scope and parameters of relevant discovery balanced against the potential prejudice. (Jenkins v City of New York, 13 AD3d 342 [2004].) The Court requested counsel to brief the issue of the scope of permissible inquiry into sexual orientation and identity under New York law in the context of a claim for loss of consortium type injuries.

Neither the parties nor the Court were able to find New York State precedent addressing the issue. Nationally, the few cases that have considered the admissibility of a victim's sexual orientation on the issue of damages have declined to allow such testimony (Peter Nicolas, " They [*5]say he's gay"; The admissibility of evidence of sexual orientation, 37 Ga. L. Rev. 793 [Spring, 2003]; Mears v Colvin, 171

Vt. 655, 768 A. 2d 1264 [2000]; Brandon ex rel. Estate of Brandon v County of Richardson, 261 Neb. 636, 624 N.W. 2d 604 [2001]; Roby v Kingsley, 492 So. 789 [Fla. 1986]; Fitzpatrick v QVC, Inc., 1999 WL 1215577 [E.D. Pa.]).

The federal district court in Fitzpatrick, a sexual harassment case, sets forth the standard:

In a sexual harassment case, evidence offered to prove

the plaintiff's sexual behavior generally is inadmissable

unless its probative value substantially outweighs the

danger of harm to the victim and of unfair prejudice

to any party.

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The Court concludes that evidence of Fitzpatrick's

sexual preference would have no probative value at

all in determining whether Fitzpatrick's was offended

by McTighe's conduct, and, without adequate foundation,

only minimal probative value in determining whether

QVC's conduct caused the alleged emotional distress.

The potential invasion of privacy, however, is substantial.

The relevant inquiry here is what is the probative value of evidence of non-party Wilder's sexual orientation on the issue of plaintiff's damages balanced against the invasion of Mr. Wilder's privacy interest and the potential prejudice to plaintiff?

The argument proffered by the NYCTA, at best, can be described as pyscho babble and, at worse, described as allowing an inquiry that buttresses and supports societal stereotypes about various groups of people. For example, the NYCTA argues that in a loss of consortium case involving an interracial couple, inquiry would be permitted into "race-based assumptions about the nature of intimacy with a black woman". Not content to argue for unfettered inquiry into the beliefs and view of an interracial couple or, as here, the alleged identity issues in a relationship between a transgender woman and her partner, the NYCTA also postures that "inquires about alleged loss of consortium

between two devout practicing Catholics might look quite different". The Court is constrained to speculate about the views that the NYCTA holds which would lead it to argue that the religious, [*6]racial or sexual identity of the plaintiff or the plaintiff's partner is a permissible area of inquiry in a discrimination case. People are people whether gay or straight, black woman or white male, devout Catholics or secular humanist. The filing of a civil law suit is not a passport which allows exploration or invasion of the most intimate beliefs a person may have based on half baked psychology or timeless stereotypes. The defendants are permitted to inquire into relevant facts regarding the sex life of the witness and plaintiff which has been made an issue by plaintiff, i.e. whether there was a sex life between plaintiff and Mr. Wilder prior to the incident, whether it changed post incident and how it changed.

This is the scope of the permissible inquiry. This inquiry allows defendant to defend the claim for damages without prejudice or intrusion into a person's most intimate and personal life.

Any probative value of the proposed inquiry (and the Court finds that the defendants have failed to identify same) is far outweighed by the invasion of this non-party witness' privacy interest as well as the possible prejudicial impact of such testimony.

This Court declines to accept defendants invitation to allow an unprecedented inquiry into the private life of litigants. This is especially the case where, as here, the defendants have already had broad discovery of plaintiff's medical records.

Accordingly, defendants' motion is denied and plaintiff's motion for a protective order is

granted. The examination of Mr Wilder's shall continue at the Courthouse in accordance with this decision at a date agreed to by the parties after scheduling with the Court..

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

April 28, 2009