A group of plaintiffs failed a lawsuit against Boston Scientific Corporation alleging that polypropylene mid-urethral slings they produced were defective. The slings are apparently used to treat female urinary incontinence. One of the plaintiffs is apparently a woman with gender identity disorder who had Obtryx implantation surgery that causes dyspareunia, or “painful intercourse.” During discovery, it came out that this plaintiff has gender identity disorder. The plaintiff stated in a deposition that “ever since I can remember I just kind of been like I’ve had the soul of a man in me.” The plaintiff moved to exclude evidence concerning her gender identity as irrelevant under Federal Rule of Evidence 401, arguing that “its probative value is vastly outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or causing undue delay and waste of time.” The court agreed, and excluded this testimony.
The court took an interesting approach with regard to pronouns:
BSC raises concern as to (plaintiff’s) dyspareunia claim and the fact that different witnesses may refer to the plaintiff using female and male pronouns. These matters will be addressed at the pretrial conference and/or at trial. As for the use of pronouns, I expect that all witnesses will refer to the plaintiff in the manner in which she desires to be addressed, and I expect the parties to resolve this issue in advance of trial. To the extent that plaintiff alleges dyspareunia at trial, the parties should use great caution and should focus any line of
testimony on the sexual activity that she alleges causes her pain and not on her gender identity status. As a matter of law, I will not allow plaintiff’s gender identity to be the focus of cross examination.