On Tuesday evening, Daily Wire Editor-at-Large Josh Hammer, a constitutional attorney by training who previously served as a judicial law clerk on the U.S. Court of Appeals for the Fifth Circuit, joined “Tipping Point With Liz Wheeler” on One America News Network (OANN) to discuss the news from earlier this month that a divided Fifth Circuit panel, in the case of U.S. v. Varner, denied a motion from a biological male litigant who formally moved to have the panel address him using female pronouns.
Earlier this month, Hammer summarized and briefly opined upon the case for The Daily Wire, referencing the “fascinating” development that Trump nominee Judge S. Kyle Duncan’s majority opinion used male pronouns, whereas Clinton nominee Judge James L. Dennis’s dissent used female pronouns:
Alas, the latest and most disputatious, headline-grabbing front of our ceaseless culture war has fully hit the federal judiciary. …
Ultimately, Duncan concluded, “[c]ourts would have to do the same. We decline to enlist the federal judiciary in this quixotic undertaking.” …
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.
Earlier this week, prior to the OANN appearance with Wheeler, Hammer also wrote a column about the case for National Review:
To capitulate to the Pandora’s box of transgender pronouns is to pretend that, exceedingly rare intersex exceptions aside, there is more to sexual differentiation than the duality of chromosomal male and chromosomal female. To yield to the soft tyranny of transgender pronouns is to pretend that gender dysphoria is an anodyne lifestyle on which societal legitimacy should be conferred, not a psychological malady requiring compassion and psychological treatment. It is to act as if simple words that have meant the same thing for centuries can change their meanings overnight without ruinous consequence for the language’s durability. It is to encourage the premature sexualization of children and accede to often irreversible tampering of their hormones. It is to undermine the ancient Hippocratic oath: “First, do no harm.” Paul McHugh, professor of psychiatry at Johns Hopkins, maintains that to encourage “surgical intervention is in reality to collaborate with and promote a mental disorder.”
Wheeler and Hammer touched upon many of the same substantive themes during the OANN TV appearance, with Hammer stating that Judge Duncan’s fearless majority opinion made him a “very proud Fifth Circuit alum”:
You know, I finished clerking on the U.S. Court of Appeals for the Fifth Circuit barely over a year ago, so I’m very familiar with this court. I know both Judge Duncan and Judge Jerry Smith, who was also in the majority, personally, actually. Judge Duncan, Trump nominee — a wonderful jurist based in Baton Rouge, Louisiana.
So basically what happened here was a very unusual procedural posture. I mean, this took the format of an order — it was more of an order than a traditional “case” or “controversy,” we might say. But the litigant formally moved to be addressed by a transgender pronoun, which is very unusual. Certainly, in my time clerking, I never came across something like that. That is not a typical motion that as a judge or a law clerk, you see on a day-to-day basis … [but] I was a very proud Fifth Circuit alum when I saw this opinion.
Wheeler said that she agreed with “every word” of Hammer’s.
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