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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Emani Love, Tina Seitz, Codie 

Stone, E.B., A.M., & K.S., 

Plaintiffs, 

v. 

RUTH JOHNSON, in her official 

capacity as the Secretary of State of 

Michigan, 

 Defendant.

Case No. 15-cv-11834 

Hon. Nancy G. Edmunds 

Mag. Elizabeth A. Stafford 

MOTION AND BRIEF FOR PROTECTIVE ORDER 

TO PROCEED UNDER FICTITIOUS NAMES 

Statement Regarding Concurrence 

Local Rule 7.1(a) requires Plaintiffs to ascertain whether this motion will be 

opposed. Because this motion is being filed on the same day as the complaint, 

there is not yet an attorney of record for Defendant in this case. Plaintiffs’ counsel 

did call and email the chief counsel for the Secretary of State’s office to explain the 

nature of this motion and its legal basis. Plaintiffs’ counsel requested but did not 

obtain concurrence in the relief sought. 

MOTION 

Plaintiffs E.B., A.M. and K.S. (“Movants”), by their undersigned counsel, 

respectfully move this Court for permission to bring this action under their initials 

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in order to protect their identities from public disclosure. The motion is supported 

by the brief below. 

BRIEF IN SUPPORT 

Introduction 

The Movants ask this Court for permission to bring this action using 

assumed names for the purpose of protecting their identities from public 

disclosure. The Movants are challenging the constitutionality of the Secretary of 

State of Michigan’s policy requiring transgender persons to produce an amended 

birth certificate showing the correct gender in order to correct the gender 

designation on their Michigan driver’s license or state identification card (the 

“Driver’s License Policy”). As transgender individuals, Movants belong to a 

group that has long been subject to discrimination, hostility and even violence. 

Moreover, a person’s transgender status and medical condition are sensitive and 

highly personal. Accordingly, forcing transgender people to disclose their 

identities in public court records requires them to disclose deeply personal 

information and subjects them to the possibility of significant harm. 

Movants have no objection to providing their actual names to the Defendant, 

but will request that the Court enter a protective order barring further 

dissemination of their names and requiring that any documents containing their 

names be filed under seal before they do so. 

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Argument 

As a general matter, a complaint must state the names of all parties. Fed. R. 

Civ. P. 10(a). However, “trial courts have always been afforded the power to seal 

their records when interests of privacy outweigh the public’s right to know.” In re 

Knoxville News-Sentinel Co., 723 F.2d 470, 474 (6th Cir. 1983) (citations omitted). 

Plaintiffs can be excused from identifying themselves if a court concludes that the 

plaintiffs’ privacy interests are more substantial than the presumption of open 

judicial proceedings. Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004). In 

addition, Federal Rule of Civil Procedure 26(c) specifically permits the court to 

“issue an order to protect a party or person from annoyance, embarrassment, 

oppression, or undue burden or expense” upon motion of a party. The granting of 

a protective order under Rule 26(c) requires a showing of good cause by the 

movant, which Plaintiffs have shown here. 

The Relevant Factors Identified by the Sixth Circuit 

Support the Relief Sought by this Motion 

Here, the Movants’ privacy interests outweigh the general presumption of 

open records. In addition to expressing concern about plaintiffs who may be 

subject to harassment, the Sixth Circuit has identified several factors that the Court 

may consider in determining whether a plaintiff may proceed anonymously, 

including, among others, “whether the plaintiffs seeking anonymity are suing to 

challenge governmental activity” and “whether prosecution of the suit will compel 

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the plaintiffs to disclose information ‘of the utmost intimacy.’” Porter, 370 F.3d at 

560. The facts in this case support granting the relief sought by this motion. 

First, the Movants are challenging government activity. Their challenge to 

the burdens placed on transgender people by the Michigan Secretary of State’s 

Driver’s License Policy may subject them to criticism from members of the public 

who do not understand what it means to be transgender or are intolerant towards 

transgender people for other reasons. 

Second, the information disclosed in the Complaint, and information likely 

to be disclosed during discovery, is highly personal. Movants’ involvement in this 

case will expose their transgender status, which is private, sensitive information 

about the difference in their assigned sex at birth and gender identity. As the 

Second Circuit has explained: “the excruciatingly private and intimate nature of 

transsexualism, for persons who wish to preserve privacy in the matter, is really 

beyond debate.” Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999). Other 

courts have come to the same conclusion. E.g., K.L. v. State, No. 3AN-11-05431 

CI, 2012 WL 2685183, at *6 (Alaska Super. Ct. Mar. 12, 2012) (“The Court 

agrees that one’s transgender[] status is private, sensitive personal information” 

and “is entitled to protection.”). Furthermore, the information at issue concerns the 

Movants’ medical condition, gender dysphoria, which would be released to the 

public if this motion is not granted. 

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 Moreover, persons publicly identified as transgender are at risk of hostility, 

harassment, and even injury: “transsexualism is the unusual condition that is likely 

to provoke both an intense desire to preserve one’s medical confidentiality, as well 

as hostility and intolerance from others.” Powell, 175 F.3d at 111; see also

Brocksmith v. United States, 99 A.3d 690, 698 n. 8 (D.C. 2014) (“The hostility and 

discrimination that transgender individuals face in our society today is welldocumented.”); Jaime M. Grant et al., Injustice at Every Turn: A Report of the 

National Transgender Discrimination Survey, NATIONAL CENTER FOR 

TRANSGENDER EQUALITY AND NATIONAL GAY AND LESBIAN TASK FORCE at 5 

(2011) (disclosing the widespread discrimination, harassment, and violence 

experienced by transgender people, as well as the fact that 40% of transgender 

survey respondents who presented identification that did not match their gender 

identity reported being harassed). 

Because of the stigma attached to transgender individuals and the risks the 

population faces due to their transgender status, courts allow transgender plaintiffs 

to proceed under pseudonyms. See, e.g., In re E.P.L., 891 N.Y.S.2d 619, 621 (Sup. 

Ct. 2009) (shielding the publication of a transgender individual’s name in seeking a 

court order regarding a name change based upon his “right to feel threatened for 

his personal safety in the event his transgender status is made public,” even though 

he had not personally experienced any violence based on his gender identity). 

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Moreover, the Eastern District of Michigan has recognized that “[a] plaintiff 

can support his fear by demonstrating the need for anonymity to prevent 

retaliation, the reasonableness of the plaintiff’s fear, the severity of the threatened 

harm, and the plaintiff’s vulnerability.” Does 1-114 v. Shalushi, No. 10-11837, 

2010 U.S. Dist. LEXIS 77331, at *9 (July 30, 2010) (citations omitted). In this 

case, the Movants have fears of retaliation, their fear is reasonable, the harm 

threatened is severe, and the Movants are members of an extremely vulnerable 

group. 

The Movants’ fears of retaliation are based on the widespread 

misunderstanding of, or hostility towards, transgender persons, which has resulted 

in discrimination and harassment, as well as the prevalence of violence against 

transgender individuals. The threat of physical harm to transgender individuals 

due to the disclosure of their transgender status is real. As one court recognized, 

“there exist numerous documented instances of those targeted for violence based 

on their. . . gender identity.” In re E.P.L., 891 N.Y.S.2d at 621. Numerous reports 

and studies also show the degree to which transgender individuals are at risk of 

physical violence. See, e.g., Lesbian, Gay, Bisexual, Transgender, Queer, and 

HIV-Affected Hate Violence in 2013, NATIONAL COALITION OF ANTI-VIOLENCE 

PROGRAMS (2014); Injustice at Every Turn, supra, at p. 2 (stating that 61% of 

survey participants were victims of physical assault). Thus, the risk of disclosure 

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places the Movants at risk of serious physical danger and a protective order is 

necessary to safeguard not just their privacy, but also their safety. These facts 

provide strong support for the relief sought by this motion. 

Defendant will Have Sufficient Information to Present Her Defense 

The Sixth Circuit has also noted that courts should weigh the harm to 

movants against the issue of whether defendants would have sufficient information 

to present their defense. In Porter, the court approved of a protective order that 

required disclosure of the plaintiffs’ identities to the defendants but limited 

disclosure of the plaintiffs’ personal information to the public or outside the 

litigation. 370 F.3d at 560-61. Similarly here the Movants seek an order that 

would limit disclosure of their personal information to the public, but that would 

permit the disclosure to the Defendant. Thus, the proposed protective order would 

not hamper the Defendant’s ability to present a defense. Like the situation in 

Porter, “it is unclear how [the Court’s grant of the protective order] would. . . 

hinder[] [the Defendant’s] preparation” of the case, as the Defendant here would 

still be able “to obtain all the necessary information to address” the issues in this 

case without public disclosure of the names. Id. at 561. 

Conclusion 

Thus, the risks are real and substantial, and the Movants should not be 

required to risk exacerbating the very harms they are attempting to prevent in an 

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effort to enforce their rights. A protective order is necessary to prevent the 

Movants from being subjected to revealing sensitive personal and medical 

information, harassment, discrimination, or physical harm. Such an order would 

not compromise the Defendant’s ability to conduct her defense. 

For the foregoing reasons, the Movants respectfully request the Court to 

grant this motion to proceed under fictitious names. 

Respectfully submitted, 

/s/ Jay D. Kaplan 

Jay D. Kaplan (P38197) Steven R. Gilford 

Daniel S. Korobkin (P72842) Michael F. Derksen 

Michael J. Steinberg (P43085) Jacki L. Anderson 

American Civil Liberties Union PROSKAUER ROSE LLP 

 Fund of Michigan 70 West Madison, Suite 3800 

2966 Woodward Ave. Chicago, IL 60602 

Detroit, MI 48201 (312) 962-3550 

(313) 578-6814 sgilford@proskauer.com 

jkaplan@aclumich.org mderksen@proskauer.com 

dkorobkin@aclumich.org jlanderson@proskauer.com 

msteinberg@aclumich.org 

John A. Knight 

American Civil Liberties Union Foundation 

180 N. Michigan Avenue, Suite 2300 

Chicago, IL 60606 

(312) 201-9740 

jaknight@aclu.org 

 

Attorneys for Plaintiffs 

Dated: May 21, 2015 

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CERTIFICATE OF SERVICE 

I hereby certify that on May 21, 2015, this motion and brief was filed 

electronically using the Court’s ECF system, which will provide electronic notice 

to all counsel of record. Additionally, because defense counsel has not yet 

appeared, Plaintiffs’ counsel emailed this motion and brief to the chief counsel in 

the Michigan Secretary of State’s office. This motion and brief will also be served 

along with the complaint and summons. 

 /s/ Jay D. Kaplan 

Jay D. Kaplan (P38197) 

American Civil Liberties Union 

 Fund of Michigan 

2966 Woodward Ave. 

Detroit, MI 48201 

(313) 578-6814 

jkaplan@aclumich.org 

Dated: May 21, 2015 

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