On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket Nos. L-9328-98 and L-7543-99.
Before Judges King, Lefelt and Axelrad.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
These consolidated appeals arise from the summary judgment dismissal of two complaints filed by plaintiff Carla Enriquez, a male-to-female transsexual, for wrongful termination of her employment as medical director of a learning behavior center owned and managed by the various corporate and individual defendants. Most significantly, this appeal raises the novel issues of whether gender dysphoria or transsexualism is a handicap under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 through -49 ("LAD"), and whether the LAD precludes an employer from discriminating on the basis of someone's sexual identity or gender. We answer both questions in the affirmative and reverse and remand for further proceedings.
We recount only those portions of the procedural history and facts necessary to explain our resolution of the issues raised in these consolidated appeals. Plaintiff was born a biological male and, until February 1998, was legally known as "Carlos." Plaintiff is a licensed New Jersey physician who was in the private practice of general and developmental pediatrics from 1974 to 1995.
On November 20, 1995, defendant West Jersey Health Systems ("West Jersey") hired plaintiff as medical director of defendant outpatient treatment facility, West Jersey Center for Behavior, Learning and Attention ("Center"). Plaintiff and West Jersey entered into a written Professional Services Agreement that could be terminated by either party upon ninety days' written notice.
In September 1996, less than a year after plaintiff's employment with West Jersey commenced, she began the external transformation from male to female. Plaintiff shaved her beard and eventually removed all vestiges of facial hair. She sculpted and waxed her eyebrows, pierced her ears, started wearing emerald stone earrings, and began growing breasts.
In the early months of 1997, plaintiff was confronted by defendants John Cossa, Maureen Miller, and Ellen Feinstein regarding their discomfort over her transformation. Cossa was West Jersey's vice president and president and chief executive officer of defendant West Jersey Clinical Association, also known as defendant West Jersey Physicians' Associates ("Physicians' Associates"), the entity which assumed control of the Center's professional staff in September 1997. Miller was vice president of outpatient services at West Jersey and Feinstein was her assistant.
By February 1997, plaintiff began manicuring and polishing her nails, growing long hair, and wearing a ponytail. On February 13, 1997, Cossa expressly questioned plaintiff about her appearance. According to plaintiff, Cossa asked if plaintiff would be willing to go back to her prior appearance if West Jersey asked her to. Cossa told plaintiff, "stop all this and go back to your previous appearance!"
In June 1997, plaintiff was diagnosed with gender dysphoria, which is a gender identity disorder listed in the Diagnostic and Statistical Manual of Mental Disorders, (fourth edition, 1994)("DSM-IV"), published by the American Psychiatric Association. This disorder is also known as transsexualism.
On July 22, 1997, plaintiff received a letter from Miller stating that the hospital, pursuant to the professional services agreement, was terminating the agreement, without cause, effective in ninety days, on October 22, 1997. According to this letter, the Center's program was being assumed by Physicians' Associates as of the end of October. Plaintiff was advised that she would be contacted by Cossa to discuss a new contract with that entity.
From July 22 to September 29, 1997, plaintiff repeatedly tried to discuss a new contract with Cossa, without any success. Plaintiff claimed that as of September 1997, all of the other professional staff employed at the Center had become employees of Physicians' Associates.
On September 29, 1997, when plaintiff finally met with Cossa regarding a new contract for plaintiff, Cossa advised plaintiff that "[N]o one's going to sign this contract unless you stop this business that you're doing."
When Cossa and plaintiff next met, on October 13, plaintiff presented Cossa with a letter she had drafted to her family and patients, explaining her gender identity disorder and the treatment she was following. She had not yet sent the letter to anyone. Cossa asked plaintiff not to say anything yet and to let Cossa try to work things out.
On October 22, 1997, Cossa handed plaintiff a termination letter. According to this letter, Cossa and plaintiff had discussed the possibility of moving plaintiff to Physicians' Associates. However, defendants decided not to pursue that option and had made arrangements for other doctors to be available immediately to provide care to the Center's patients.
Cossa told plaintiff that the hospital would not allow plaintiff to send her proposed letter to the patients, and that the hospital had drafted a different letter. Plaintiff was also told not to return to the office for the rest of that day and that her patients had been canceled for the next three months.
In February 1998, plaintiff legally changed her name to Carla. In July 1998, approximately nine months after she was terminated, plaintiff underwent the surgical procedure to become a female. Plaintiff stated that while she was a man, she was not gay and was not sexually attracted to other men. No one at West Jersey ever accused plaintiff of being gay. Since her surgery, plaintiff has continued to live as a "spouse" with Monica, to whom plaintiff was married while she was a man. Plaintiff believes, according to her deposition testimony, that Monica is a lesbian. Plaintiff believes that the course of treatment she began, that ended with sex reassignment surgery, cured her gender dysphoria.
In December 1998, plaintiff filed her first complaint against defendants for disability discrimination under the LAD, gender or sexual orientation-affection discrimination under the LAD, breach of contract, and trade libel. The West Jersey defendants filed a motion for partial summary judgment, seeking dismissal of plaintiff's claim for disability discrimination. The motion judge granted defendant's motion, noting that other courts had concluded that transsexualism was not a recognized mental or physical disability under statutes very similar to ours.
Thereafter, all defendants moved for summary judgment seeking dismissal of the remainder of plaintiff's claims. Before these motions could be heard, plaintiff filed a separately docketed complaint on October 21, 1999, naming the same defendants and reciting the same factual allegations. This complaint, however, alleged causes of action for intentional interference with a contractual relationship, conspiracy, wrongful refusal to continue a business, and unjust enrichment.
In dealing with the summary judgment motions made by all defendants regarding the remaining counts of plaintiff's first complaint, the motion judge found that plaintiff could not bring a claim for sexual orientation discrimination because plaintiff admitted that, while she was a male, she was not gay and was never accused of being gay. The judge did not believe that the Legislature has provided any remedy for persons who elected to change their sex.
The judge dismissed the breach of contract claim on the ground that plaintiff's employment contract contained a ninety- day termination provision. With regard to the trade libel claim, the judge noted that plaintiff had refused to identify those patients she claimed had been told by defendants that something was wrong with plaintiff and that plaintiff was no longer practicing medicine. The judge acknowledged that plaintiff had submitted two affidavits in opposition to summary judgment, but did not comment on whether these affidavits would alter his decision.
The affidavits that plaintiff had submitted in opposition to the summary judgment motion were from the parents of two patients. According to one parent, after plaintiff's termination, West Jersey told her that they had no idea where plaintiff was. The parent was also told that plaintiff might have stopped practicing medicine and that the parent should look for a new doctor for her child.
The affidavit from the other parent was similar. In addition to telling this parent that they had no idea where plaintiff went, defendants also said that plaintiff was going through some personal issues and would probably not be practicing medicine anymore.
In February 2000, all defendants moved for a summary judgment dismissal of plaintiff's second complaint. In granting these motions, a different motion judge concluded that the second complaint was a "repackaging" of the first complaint, which had been dismissed by the first motion judge.
Plaintiff appealed from the summary judgments dismissing the two complaints, and we consolidated the two appeals. In addition to contesting the dismissal of the entire first complaint, only two of the causes of action alleged by plaintiff in the second complaint, interference with economic opportunity and unjust enrichment, are being challenged in the appeal.
We first detail what the record discloses concerning plaintiff's gender dysphoria or transsexualism. Essentially, plaintiff claimed that she felt like a woman trapped in a man's body from a very early age, and that she was called upon to act manly even though she did not feel masculine. This is consistent with general clinical findings regarding other transsexuals. "Transsexuals do not alternate between gender roles; rather, they assume a fixed role of attitudes, feelings, fantasies, and choices consonant with those of the opposite sex, all of which clearly date back to early development." Current Medical Diagnosis & Treatment 928 (Lawrence M. Tierney, Jr. et al. eds., 35th ed. 1996).
Though plaintiff is a physician, she did not diagnose herself. Dr. William Stayton from the University of Pennsylvania formally diagnosed plaintiff's condition. Plaintiff claims Dr. Stayton is an "internationally renowned expert in gender and sexual medicine." According to the letter plaintiff wanted to send her patients explaining her situation, there are "internationally accepted norms for treatment of this condition." These encompass the steps that plaintiff went through including "extensive psychological counseling, extended planning for 'transition,' the use of contrahormonal ...