When a pro se federal prisoner’s name change motion reached the Fifth Circuit, the appellant made the additional request that the court employ feminine pronouns. At this point, the court could — without much trouble — just use feminine pronouns. Instead, Judge Stuart Kyle Duncan, a hack attorney who now sits on the Fifth Circuit because he was on the Hobby Lobby case, devoted nearly six pages to explain why adding an “s” to any pronouns in the opinion wasn’t just his bigoted trolling but rather an impossible burden threatening to grind the judicial system to a halt!
First, no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity. Federal courts sometimes choose to refer to gender-dysphoric parties by their preferred pronouns.
To Judge Duncan’s partial credit, at this point he includes a footnote explaining that “sometimes” translates to EVERY OTHER CIRCUIT EXCEPT THE ELEVENTH (the footnote also misses the 10th, but the dissent adds them). Judge Duncan even recognizes that his own FIFTH CIRCUIT has respected litigant pronouns in the past. Undeterred by the overwhelming persuasive precedent, Judge Duncan continues wasting government ink on trying to put an academic spin on just being an asshole.
Varner’s motion in this case is particularly unfounded. While conceding that “biological[ly]” he is male, Varner argues female pronouns are nonetheless required to prevent “discriminat[ion]” based on his female “gender identity.” But Varner identifies no federal statute or rule requiring courts or other parties to judicial proceedings to use pronouns according to a litigant’s gender identity. Congress knows precisely how to legislate with respect to gender identity discrimination, because it has done so in specific statutes. See Wittmer v. Phillips 66 Co., 915 F.3d 328, 338 (5th Cir. 2019) (Ho, J., concurring) (citing Hively v. Ivy Tech Comm. Coll. of Indiana, 853 F.3d 339, 363–64 (7th Cir. 2017) (Sykes, J., dissenting)) (observing that “both Congress and various state legislatures have expressly prohibited . . . gender identity discrimination by using the term[ ] . . . ‘gender identity’ discrimination”)
Except the prisoner isn’t trying to assert a cause of action here — all she wants is the court to use the proper pronouns. As 84-year-old Judge Dennis notes in dissent, basic English skills make it clear that this is just a request that “this court, in this proceeding” (emphasis in original) employ feminine pronouns.
Judge Duncan continues:
Second, if a court were to compel the use of particular pronouns at the invitation of litigants, it could raise delicate questions about judicial impartiality
Oh?
What Judge Duncan is trying to suggest is that in the event of a case over gender identity, using someone’s preferred pronouns would convey the appearance of prejudgment. Except by that logic that’s also true of not using someone’s preferred pronouns. The fairest way to resolve this would be to respect personal preferences as a courtesy but recognize that whatever statute lies at the heart of a case may not grant the relief the litigant wants. But taking that logical step would undermine Duncan’s earlier inane argument about legislating gender discrimination so he’s just going to glide past it with all the intellectual laziness he can muster.
Third, ordering use of a litigant’s preferred pronouns may well turn out to be more complex than at first it might appear. It oversimplifies matters to say that gender dysphoric people merely prefer pronouns opposite from their birth sex—“her” instead of “his,” or “his” instead of “her.” In reality, a dysphoric person’s “[e]xperienced gender may include alternative gender identities beyond binary stereotypes.” DSM-5, at 453; see also, e.g., Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender that Is More Inclusive of Transgender People, 11 Mich. J. Gender & L. 253, 261 (2005) (positing that gender is not binary but rather a three-dimensional “galaxy”). Given that, one university has created this widely-circulated pronoun usage guide for gender-dysphoric persons:
Shorter: “We’ve all gone to law school, but the possibility of keeping nine things in our heads is far too daunting.” In Duncan’s defense, being a conservative jurist usually doesn’t require anything more complex than taking contemporary Republican talking points and saying, “my guess is James Monroe would’ve wanted it this way.” It’s not like judges would even be guessing at the proper pronouns by consulting a list like this because the litigant would tell them straight up what to use. They would only have to cut and paste.
There’s not really a difference between this and saying, “there are a lot of names out there… how can judges keep track of someone who spells ‘Gennifer’ with a ‘G’? So this court will only use ‘Jennifer’ in all documents lest the American judicial system collapse into anarchy.” Just use what the fucking litigant asks. It’s not hard.
In fact, a test of how not hard it is, realize that over half of this opinion is wasted on trying to justify Duncan’s inability to use the “s” key.
Deploying such neologisms could hinder communication among the parties and the court. And presumably the court’s order, if disobeyed, would be enforceable through its contempt power.
That’s… not how any of this works.
John Mulaney has a joke about someone telling him that the word “midget” was “as bad as the n-word” and him explaining, “If you’re comparing the badness of two words, and you won’t even say one of them? That’s the worse word.” A good judicial corollary might be that if you need 6 pages to justify not using one letter… that’s the worse position.
(Full opinion on the next page….)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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