Trans woman can move forward with lawsuit, judge rules
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Tanesh Nutall, a transgender woman who is suing the city of San Francisco saying her rights were violated, will be able to move forward with her lawsuit taken on by the state Department of Fair Employment & Housing, a judge ruled Tuesday, May 8.
San Francisco Superior Court Judge Harold Kahn denied the city's motion to dismiss the case at the hearing.
On behalf of Nutall, the DFEH is suing the city over a February 2016 incident in which an employee of the city's Department of Police Accountability, formerly known as the Office of Citizen Complaints, allegedly blocked Nutall from using a women's restroom and called her a "fucking freak" and a "fucking man."
At the time, Nutall, 52, was an employee of the San Francisco AIDS Foundation and was attending a training that had been organized by the city's Department of Public Health at its building located at 25 Van Ness Avenue.
The DFEH claims Nutall's rights were violated under the Unruh Civil Rights Act, a state law that outlaws discrimination based on sex, sexual orientation, race, color, religion, and disability.The law applies to all California businesses.
Deputy City Attorney Brian Ceballo said discrimination laws do not apply to the employee in question because the DPA is not considered a business establishment. Ceballo also questioned the truthfulness of Nutall's claims.
"Departments and municipality entities are not business establishments," Ceballo said at the hearing.
Jennet Zapata, staff counsel, and Catherine Habash, civil rights fellow, for the DFEH, who were present at the hearing, said the city was conducting itself as a business establishment on the day of the incident and are responsible for properly training their employees on bias and discrimination.
The judge's ruling, which came after a short 10-minute hearing, claimed that facilities, which are open to the public or where people are invited, are analogous to a public club, which is considered a business entity.
"San Francisco respects the rights of all individuals," city attorney spokesman John Cote said in a statement. "This city has been a leader on equality for decades. We also have a legal responsibility to San Francisco taxpayers. It is our understanding that the factual allegations in this lawsuit are not entirely accurate and that a city employee did not violate Ms. Nutall's protected rights. We look forward to the full picture coming out in court."
Nutall is involved in a second lawsuit against the city on her own behalf, also alleging violations of state discrimination laws. In that case, she is being represented by the Transgender Law Center, which calls the allegations "shocking." The city filed a motion to dismiss that case as well. A federal judge will hold a hearing May 14 on the city's motion to dismiss the suit.
"We think that it's really shocking the position San Francisco has taken in these cases," said Shawn Meerkamper, staff attorney at the Transgender Law Center in a phone interview with the Bay Area Reporter. "The fact that a city like San Francisco, which prides itself on being a beacon of progressiveness and acceptance, is arguing that non-discrimination laws do not apply to them, saying they can't be held accountable for these egregious actions for a city employee who harassed our client and called her a fucking freak and a fucking man, is really unfortunate."
Nutall said in a statement through TLC that she had to leave the city.
"I had to leave San Francisco because, after a city employee verbally attacked me, I no longer felt safe there as a black transgender woman," she said. "Now, the city is arguing they did nothing wrong, and that I don't have the right to use the bathroom in a city building without being harassed because of who I am. All my life I'd heard about San Francisco as a place where transgender people could be safe and accepted as ourselves, but the city itself is saying that's a lie."
During Nutall's participation at the city-sponsored training session in February 2016, Nutall took a break at about 11 a.m. to use the women's restroom located near the training room. Entry to the restroom required a key code, which was posted on the training room's wall.
Mary Ivas, who worked at the then-Office of Citizen Complaints, which has an office near the training room, was entering the restroom as Nutall approached, so Nutall asked her, "Excuse me, miss, can you hold the door?" according to the complaint Nutall filed February 16 in San Francisco Superior Court.
Ivas turned and said, "No, this is a women's restroom," and quickly closed the door to block Nutall, Nutall claims.
Nutall said she went back to the training room and told Natalie Thoreson, the presenter, about the incident and asked her to come with her to the restroom so she could get in.
They saw Ivas as they approached the restroom, and Nutall said she told Thoreson, "That is the woman right there. She would not let me use the restroom."
Ivas turned to the women and said, "Yes, this is a women's restroom, and that is a fucking man." She then turned to Nutall and called her a "fucking freak," the complaint says.
Through her lawsuit, Nutall is seeking damages exceeding $25,000 and "a permanent injunction ordering all defendants and their agents and employees to cease engaging in the unlawful conduct" she described, along with other relief.
Nutall claims in her lawsuit that she's suffered panic attacks, depression, and other problems and has had to take medications and get therapy as a result of the incident. She also ended up being late for work or missing it entirely, and the AIDS foundation "constructively terminated" her in April 2017.
Ivas remembers the incident differently. Ivas, whose LinkedIn page says she was an investigator with the DPA for more than 20 years, filed a police report shortly after the incident. The DPA confirmed Ivas no longer works for the agency.
She told Officer Alexandra Medina, "I feel like I've been assaulted," stated the report filed February 18, 2016.
In the report, Ivas claims she never called Nutall a freak and "felt threatened" because both Nutall and Thoreson, and the other person present, "were physically large people in her personal space, and yelling at her."
It also claims that when Ivas entered another office after her initial interaction with Nutall, "she felt two hands on her back physically pushing her forward" into the room.
The B.A.R. obtained her police report through a public records request.
Contact the reporter at firstname.lastname@example.org.