Do prisons and courts owe inmates — or anyone else — the use of their preferred pronouns? Thanks to a strange appeal to the Fifth Circuit this week, the answer is no, at least in Louisiana, Mississippi, and Texas — maybe. Norman Varner is in the middle of a 15-year sentence for possession of child pornography, but he now wishes to be known as Katherine Nicole Jett and identifies as female. A lower court had ruled against his effort to get his name changed on his committal to prison, and Varner/Jett had appealed — and added a motion to demand that the courts and prisons refer to Varner/Jett by his now-preferred pronouns.
The Fifth Circuit overturned the original ruling on the name change, deciding that the court didn’t have the authority to even entertain the motion in the first place. On a 2-1 decision, Judge Stuart Kyle Duncan went at more length to make clear that the normal application of English pronouns would be sufficient for courts and other government officials, although they can individually choose on pronouns for themselves. Not only has Congress not passed any such statutory requirement, compelling use might indicate bias — and besides, the question then opens up a “three-dimensional galaxy” of uncertainty in compelled speech (via PJ Media’s Tyler O’Neil):
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. … But Congress has said nothing to prohibit courts from referring to litigants according to their biological sex, rather than according to their subjective gender identity.
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. Federal judges should always seek to promote confidence that they will dispense evenhanded justice. See Canon 2(A), Code of Conduct for United States Judges (requiring judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”). At its core, this judicial impartiality is “the lack of bias for or against either party to the proceeding,” which “assures equal application of the law.” Repub. Party of Minn. v. White, 536 U.S. 765, 775–76 (1992) (cleaned up); see also, e.g., Bunton v. Quarterman, 524 F.3d 664, 672 (5th Cir. 2008) (explaining that defendants’ “right to a fair trial” is in part “fulfilled by a judicial officer who impartially presides over the trial”) (citing Bracy v. Gramley, 520 U.S. 899, 904–05 (1997)). Increasingly, federal courts today are asked to decide cases that turn on hotly-debated issues of sex and gender identity. See, e.g., Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3d Cir. 2018), cert. denied, 139 S. Ct. 2636 (2019) (evaluating school district policy allowing students to use bathrooms and locker rooms corresponding to their gender identity instead of their sex); Adams by & through Kasper v. Sch. Bd. of St. Johns Cty., Fla., 318 F. Supp. 3d 1293, 1296 (M.D. Fla. 2018) (stating that “what this case is about” is “whether Drew Adams is a boy”). In cases like these, a court may have the most benign motives in honoring a party’s request to be addressed with pronouns matching his “deeply felt, inherent sense of [his] gender.” Edmo v. Corizon, Inc., 935 F.3d 757, 768 (9th Cir. 2019) (cleaned up). Yet in doing so, the court may unintentionally convey its tacit approval of the litigant’s underlying legal position. See, e.g., United States v. Candelaria-Gonzalez, 547 F.2d 291, 297 (5th Cir. 1977) (observing that a trial judge “must make every effort to preserve the appearance of strict impartiality,” including by “exhibit[ing] neutrality in his language”). Even this appearance of bias, whether real or not, should be avoided.
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:
Where would this all end?, the majority wondered. In contempt demands that would grind the legal process to a halt for no good purpose, they concluded:
If a court orders one litigant referred to as “her” (instead of “him”),
then the court can hardly refuse when the next litigant moves to be referred to as “xemself” (instead of “himself”). 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. … When local governments have sought to enforce pronoun usage, they have had to make refined distinctions based on matters such as the types of allowable pronouns and the intent of the “misgendering” offender. See Clark, 132 Harv. L. Rev. at 958–59 (discussing New York City regulation prohibiting “intentional or repeated refusal” to use pronouns including “them/them/theirs or ze/hir” after person has “made clear” his preferred pronouns).4 Courts would have to do the same. We decline to enlist the federal judiciary in this quixotic undertaking.
Note, however, that this does not prevent courts or government officials from choosing on their own to use someone’s preferred pronouns. Duncan writes up front that the courts also lack the authority to compel the use of biologically appropriate pronouns either, and that some courts have done so — “purely as a courtesy to parties” before them. However, ‘[n]one has adopted the practice as a matter of binding precedent,” Duncan points out, “and none has purported to obligate litigants or others to follow the practice.” The majority opinion in this appeal would not compel use in either direction; it establishes, rather, that people can choose for themselves which pronouns to use.
That seems to be an eminently reasonable and rational conclusion, yes? Not to fellow jurist Judge James L. Dennis, who blasts the decision not to use the inmate’s preferred pronouns. Dennis writes in his dissent that this request was nowhere near as broad as the majority interprets, and that Varner/Jett was merely requesting the courtesy that the majority referenced in this one instance only:
The majority concludes that, based on Varner’s two-sentence, pro-se motion, Varner seeks, “at a minimum, to require the district court and the government to refer to Varner with female instead of male pronouns.” But Varner’s request is not so broad. The terms “district court” and “government” are not mentioned in Varner’s motion. The motion was filed in this court and is titled “Motion to Use Female Pronouns When Addressing Appellant.” Varner’s use of the term “appellant” to describe herself leads to the conclusion that her request is confined to the terms used by this court in this proceeding.
In my view, Varner is simply requesting that this court, in this proceeding, refer to Varner using her preferred gender pronouns. Not only is this the most faithful interpretation of her motion given the language she uses, it is also the narrowest. …
Ultimately, the majority creates a controversy where there is none by misinterpreting Varner’s motion as requesting “at a minimum, to require the district court and the government to refer to Varner with female instead of male pronouns,” when she in fact simply requests that this court address her using female pronouns while deciding her appeal. The majority then issues an advisory opinion on the way it would answer the hypothetical questions that only it has raised. Such an advisory opinion is inappropriate, unnecessary, and beyond the purview of federal courts.
In other words, Dennis concludes in his “emphatic” dissent, the court took a molehill and built it into a precedential mountain. Dennis also disputes whether this is precedential at all, calling it “dictum and not binding precedent.” Did the other two jurists overreact to a polite request? Perhaps that’s best answered by the fact that Varner/Jett put the polite request into the form of a legal motion accompanying his appeal. That might have been intended as a polite request, but motions are usually demands for judgment based on the law. Is it unreasonable for jurists to rule on motions — rulings which might indeed carry precedential weight — on the basis of law rather than courtesy? Could this request have been made more informally by Varner/Jett’s attorney, or through a personal letter from the petitioner to the court?
In a way, this validates the majority’s concern over bias if pronoun use was to be compelled. The petitioner in this case has no factual basis to claim that equal justice cannot be reached without the use of his preferred pronouns, except to say that he would “feel that I am being discriminated against based on my gender identity.” Feelings do not trump objective facts, however, nor do they trump statutes. To react to every such motion by recasting all pronoun use in a case to the feelings of the moment would be to create chaos. Some courts might be willing to put up with that, but Duncan gets it correct by saying that they have no obligation to do so — only an obligation to deliver equal justice and application of law regardless of the identities before them in court.