On Wednesday, a divided panel of the New Orleans-based U.S. Court of Appeals for the Fifth Circuit ruled, in 2–1 fashion, that a transgender litigant — a biological male who suffers from gender dysphoria and subjectively feels that he is a female — cannot require a court to address him using female pronouns.
The case, U.S. v. Varner, pitted Reagan nominee Judge Jerry E. Smith and Trump nominee Judge S. Kyle Duncan in the panel majority, against Clinton nominee Judge James L. Dennis as the lone dissenter. What made the opinion particularly fascinating was that Duncan’s majority opinion used male pronouns, whereas Dennis’ dissent used female pronouns.
Alas, the latest and most disputatious, headline-grabbing front of our ceaseless culture war has fully hit the federal judiciary.
As highlighted by legal blogger extraordinaire and Ethics and Public Policy Center President Ed Whelan noted yesterday at National Review’s “Bench Memos” blog, Duncan’s majority opinion provided three distinct reasons for denying the plaintiff Varner’s motion for the “use [of] female pronouns when addressing” him:
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. …
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. … Increasingly, federal courts today are asked to decide cases that turn on hotly-debated issues of sex and gender identity. 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.” Yet in doing so, the court may unintentionally convey its tacit approval of the litigant’s underlying legal position.
Third, ordering use of a litigant’s preferred pronouns may well turn out to be more complex than at first it might appear. … [O]ne university has created this widely-circulated pronoun usage guide for gender-dysphoric persons.
Duncan then inserted the “pronoun usage guide for gender-dysphoric persons,” borrowed from the “LGBTQ+ Resource Center” at the University of Wisconsin-Milwaukee, which is a colorful five-by-nine matrix. This is potentially confusing, to say the least, as Duncan noted, and “[d]eploying such neologisms could hinder communication among the parties and the court.”
Duncan then referenced New York City’s regulation that “prohibit[s] ‘intentional or repeated refusal’ to use pronouns including ‘them/them/theirs or ze/hir’ after person has ‘made clear’ his preferred pronouns” as an example of his point that “[w]hen 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.'”
Ultimately, Duncan concluded, “[c]ourts would have to do the same. We decline to enlist the federal judiciary in this quixotic undertaking.”
It was something of a proverbial “mic drop” moment for the Louisiana-based judge, who has been on the Fifth Circuit for less than two years. Formerly the general counsel for the prominent Becket Fund for Religious Liberty, Duncan was confirmed by the U.S. Senate in April 2018 by a narrow 50–47 margin.
Along with fellow Trump-nominated Fifth Circuit Judges Andrew S. Oldham and James C. Ho (for whom, in the interest of full disclosure, I previously served as a judicial law clerk), Duncan has frequently been mentioned as someone who should be added to any new Supreme Court nominee “list” produced by the Trump administration. In fact, in some ways, Duncan seemed to be following the lead of his colleague Ho. Duncan’s opinion cited twice a March 2019 opinion, Gibson v. Collier, written by Ho, which similarly used male pronouns to refer to a biological male individual who subjectively felt that he was a woman.
Good for Judge Duncan for both adhering to the letter of the law and for defiantly standing athwart the modern cultural Left’s pernicious insistence on gaslighting the American citizenry into thinking that words may not mean what they so clearly do, in fact, mean.