Trump-appointed judge rules against using trans pronouns in child porn convict case
A federal appellate court has ruled against the mandatory use of transgender pronouns such as referring to a man as "she" or someone as "xemself" in court documents.
A three-judge panel from the New Orleans-based U.S. Court of Appeals for the Fifth Circuit ruled on Jan. 15 that no legal authority exists requiring anyone to refer to “gender-dysphoric litigants with pronouns matching their subjective gender identity."
Judge Stuart Kyle Duncan, who was appointed by President Donald Trump, denied the request to use the preferred pronouns of a transgender-identified sex offender convicted of child porn possession.
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The ruling stems from a case involving a federal prisoner named Norman Varner who appealed a lower court's refusal to alter a court document ordering his confinement in the female name of "Katherine Nicole Jett."
The three-judge panel included Duncan, the recent Trump appointee, Reagan appointee Judge Jerry Smith, and Clinton appointee Judge James Dennis. The decision was 2-1, with the Republican-appointed judges in the majority. Duncan formerly served as the general counsel at the religious liberty law firm Becket.
Varner's appeal came with a motion to use female pronouns when addressing him. He reportedly began self-identifying as a transgender woman in 2015 when he started taking hormones and indicated plans to undergo gender surgery.
The motion asserted that the lower court's unwillingness to refer to him by using female pronouns “leads me to feel that I am being discriminated against based on my gender identity” and “[r]eferring to me simply as a male and with male pronouns based solely on my biological body makes me feel very uneasy and disrespected.”
Varner was sentenced to 15 years in prison after pleading guilty in 2012 to attempted receipt of child pornography. He had been previously convicted on a state charge of failure to register as a sex offender and on possession of child porn.
“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’)," Duncan wrote in his opinion.
“Deploying such neologisms could hinder communication among the parties and the court,” the judge added. “And presumably the court’s order, if disobeyed, would be enforceable through its contempt power.”
Matters concerning self-declared gender identities as they relate to nondiscrimination and other civil rights statutes are increasingly being litigated in U.S. courts.
In October, the United States Supreme Court heard oral arguments in R.G. & G.R. Harris Funeral Homes v. EEOC & Aimee Stephens, a case where a male who identifies as female argues he was unjustly fired from his job when his former employer, a funeral parlor that has a sex-specific dress code, refused to allow him to wear a skirt to work and be recognized as a woman while on the job.
Duncan also wrote in the Fifth Circuit panel's majority opinion that a court might have the “most benign motives” in calling someone by pronouns of their choice, yet “in doing so, the court may unintentionally convey its tacit approval of the litigant’s underlying legal position.”
“We decline to enlist the federal judiciary in this quixotic undertaking,” the ruling concluded.
In his dissent, Dennis asserted that Varner “is simply requesting that this court, in this proceeding, refer to [him] using her preferred gender pronouns” and was not making the request of anyone else.
The Fifth Circuit hears federal cases from Texas, Louisiana, and Mississippi.
