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Court of Appeal:
Gender-Violence Claim Requires Allegations of Biased Intent
Opinion Says Facts Alleged to Support Medical Battery Claim Cannot Sustain Cause of Action Under California Civil Rights Statute Where No Assertions of Discriminatory Purpose, Drawing Dissent
By Kimber Cooley, associate editor
Div. One of the First District Court of Appeal has held that a cause of action asserting gender-violence under a California civil rights statute, based on a doctor’s use of medical interventions that plaintiff claimed she objected to during the birth of her child, must be supported by allegations that the defendant acted with discriminatory purposes, drawing a dissent and a call for the Supreme Court to grant review to address the scope of the provision.
At issue is Civil Code §52.4, which provides:
“Any person who has been subjected to gender violence may bring a civil action for damages against any responsible party.”
Subdivision (c) identifies “gender violence” as “a form of sex discrimination” that involves either criminal conduct “committed at least in part based on the gender of the victim” or a “physical invasion of a sexual nature.” The statute defines “gender” by reference to the definition given in the Unruh Civil Rights Act, codified at Civil Code §51.
That section specifies:
“ ‘Sex’ includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. ‘Sex’ also includes, but is not limited to, a person’s gender. ‘Gender’ means sex, and includes a person’s gender identity and gender expression.”
Plain Language
Acting Presiding Justice Kathleen Banke authored Monday’s opinion, saying:
“The plain language of Civil Code section 52.4 speaks in terms of ‘discrimination’ ‘based on’ ‘gender’ as defined in Civil Code section 51….The statute is not, in other words, directed at individuals who perpetrate or threaten to perpetrate violence simply for the sake of engaging in violence or as a mindless and random act—such violence, even if perpetrated against a victim who comes within any of the classes of persons described in the Unruh Act’s definition of gender, is not ‘based on’ the victim’s gender….” Justice Charles A. Smiley joined in the opinion. Dissenting, Presiding Justice James M. Humes wrote:
“Section 52.4 provides a civil remedy for criminal obstetric battery, and the legislative history…supplies no reason to conclude, as the majority does, that the Legislature wanted to require plaintiffs claiming such a battery to…prove an additional element of gender animus that is nowhere to be found in the statute.”
Complaint Filed
The question arose after the plaintiff and her husband, identified only as “Jane” and “John Doe,” filed a complaint against their obstetrician, Dr. Amita Kachru, among others, in October 2021, asserting claims for medical battery, gender-related violence under §52.4, and other causes of action.
In the operative Fifth Amended complaint, the plaintiffs alleged that, on Oct. 19, 2020, Kachru used a vacuum device in delivering their baby, over Jane Doe’s objection, at a Sutter Health hospital facility located in San Francisco.
They conceded that the intervention was taken after they were told that the medical staff needed to either use the equipment or perform a cesarean delivery, a procedure Jane Doe allegedly refused, due to a maternal fever and an increasing fetal heart rate.
The plaintiffs asserted that Jane Doe suffers from postpartum stress disorder and physical disabilities due to the delivery. No allegations of harm to the baby were made.
Demurrer Sustained
San Francisco Superior Court Judge sustained Kachru’s demurrer without leave to amend as to the medical battery, gender-violence, and other claims in June 2023. After the plaintiffs requested that the sole remaining cause of action for loss of consortium be dismissed, judgment was entered in favor of the defendant.
Monday’s opinion reverses the dismissal of the plaintiff’s medical battery claim but affirms the defense judgment as to the gender-violence cause of action. As to the medical battery claim, Banke opined:
“[A]ll we have before us are allegations of a medical procedure that at least arguably was substantially beyond the scope of Jane’s general authorization of obstetric care on admission to the hospital. It may well be that evidence will establish that a vacuum-assisted…delivery is not ‘substantially different’ than the general obstetric care Jane authorized. But that is not a conclusion we can make at this time as a matter of law.”
Gender-Violence Claim
Addressing the gender-violence cause of action, Banke said:
“[T]he Does maintain Jane…stated a ‘gender violence’ claim against Kachru under Civil Code section 52.4. They reason that because ‘gender’ is assertedly defined for purposes of that statute as including, among a number of other characteristics, ‘childbirth,’ an alleged medical battery by an obstetric provider based on a medical procedure performed during childbirth, a fortiori, also alleges a gender violence claim actionable under this civil rights statute.”
Noting that the plaintiffs “cite no case that considers the applicability of Civil Code section 52.4 to circumstances even remotely similar to those at hand,” she wrote:
“But even assuming, as do the Does, that ‘gender’ includes the transitory state of ‘childbirth,’ the language of Civil Code section 52.4 does not, in our view, support their claim that having alleged a medical battery claim based on Dr. Kachru performing a vacuum-assisted…delivery over Jane’s objection, they have necessarily also alleged a gender-violence civil rights claim. In other words, we do not agree with the Does that under Civil Code section 52.4 the absence of any discriminatory intent is irrelevant.”
Legislative Intent
Saying that “the legislative history…confirms what seems plain from the statutory language,” the jurist commented:
“[I]t is a civil rights statute directed at those who perpetrate or threaten violence and are motivated to do so by some discriminatory bias or animus based on the victim’s gender as the term is defined in Civil Code section 51….”
Under those circumstances, Banke remarked:
“[E]ven if the ‘plain language’ of Civil Code section 52.4 and its incorporated definition of ‘gender’ provided by the Unruh Act arguably reads as the Does posit[,]….which we do not think it does, such a reading cannot be reconciled with the Legislature’s intent so plainly revealed by the legislative history. Courts are not a slave to the plain meaning rule….”
She continued:
“[W]e cannot endorse a reading of…section 52.4 that, when applied to an obstetric provider, eliminates from this civil rights statute any requirement that the defendant have been motivated, at least in part, by discriminatory bias or animus based on the victim’s gender. Or stated another way, we cannot endorse an interpretation that renders obstetric providers automatically subject to a civil rights claim under…section 52.4 if they are sued for medical battery for performing a procedure that allegedly exceeded the scope of the patient’s authorization for obstetric care during ‘childbirth’…..”
Humes View
Humes wrote:
“The definition of ‘gender’ under section 52.4 has evolved. When the statute was first enacted in 2002, it defined ‘gender violence’ but not ‘gender.’…The Legislature’s apparent intent at the time was to prevent and remedy more conventional forms of gender related violence, such as domestic abuse and sexual assault.”
He continued: “Not only does section 52.4 not include a[n]…‘animus” requirement, but it also has since been amended to expand its definition of ‘gender.’ Effective 2016, the Legislature amended section 52.4 to define gender to have the meaning set forth in the Unruh Civil Rights Act (§ 51). The legislative history suggests this amendment was aimed primarily at expanding the definition of gender to include sexual orientation….Defining gender to include sexual orientation clearly shows that the Legislature intended to expand section 52.4’s applicability to classifications not included in the concept of ‘gender’ as ordinarily understood.”
Saying that “the circumstances of pregnancy and childbirth are far more closely connected to constructs of gender than is sexual orientation, even if they are not typically used to define the term,” he argued:
“I would apply the plain language of section 52.4 and conclude that the allegations that Kachru performed the vacuum-assisted delivery over Jane’s protestations were sufficient to avoid dismissal….If Jane does not file a petition for review, I urge the Supreme Court on its own motion to grant review to consider the important questions this case raises about the scope of the gender-violence statute.”
The case is Doe v. Kachru, 2025 S.O.S. 2824.
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