5th Circuit’s Judge Duncan Begs Pronoun Controversy

As reflected in the dissent by Judge James Dennis, it really wasn’t an issue at all.

Motion to Use Female Pronouns When Addressing Appellant

I am a woman and not referring to me as such leads me to feel that I am being discriminated against based on my gender identity. I am a woman—can I not be referred to as one?

Was this a motion to compel the government to use female pronouns? Was it anything more than a pro se litigant’s request that the court refer to the litigant as a female?

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.

There is a buried curiosity in here, as the side-show of what pronouns to use is secondary to the primary question of whether the litigant, a person sentenced to 180 months (15 years for us lawyers) on a child porn plea, who had his name changed in Kentucky while imprisoned in Pennsylvania from “Norman Varner” to “Kathrine Nicole Jett.” Neither the majority nor dissent called the litigant “Jett.” All referred to the litigant as Varner, the name reflected on the commitment issues by the sentencing court.

As Judge Dennis notes, courts have sought ways to address this semantic “gap,” citing decisions from other circuits essentially acquiescing for the purpose of their writings, as a courtesy to the litigant, to the use of the pronoun preferred. All it takes is a footnote or explanatory parenthetical to say so. Notably, the self-styled pro se motion didn’t demand the use of a plural pronoun rather than singular, or a made-up word rather than the standard feminine pronouns.

The majority, in an opinion written by Judge Stuart Kyle Duncan, nonetheless took the motion not only as one demanding a full-blown determination, but an opportunity to go “all in” by addressing every conceivable permutation of the problem, even though the two-sentence request asked nothing of the sort.

But there’s a wrinkle here that might not be obvious: newly-appointed Judge Duncan was the attorney for the Gloucester County School District in Gavin Grimm’s case. That Judge Duncan wrote the majority opinion might be explained by his assuming an “expertise” in such issues, much as Justice Harry Blackmun was tasked with writing Roe v. Wade because he was the med guy on the Supreme Court because he had represented the Mayo Clinic.

Then again, it seems more likely that Judge Duncan wrote the opinion because of the strength of his views on the question, which is a nice way of saying he was biased against the issue and used this opportunity of this two-sentence motion to spell it out, in all its glory. One of the pervasive complaints of confirming judges to a court who, in their practice days, represented highly controversial positions or litigants is that they are tainted, partisan players before and robed partisans on the bench. A decision like this, written by Judge Duncan, seems to confirm the worst fears about him.

There is, on the other hand, a view that circuit courts should provide guidance to district courts in dealing with such minefields as litigants seeking courts to use pronouns that put the court into the position of either writing confusing decisions, appearing to favor an unfavored position as a matter of courtesy when the court really doesn’t want to be in the middle at all. And indeed, Judge Duncan’s opinion goes far beyond the simple request by Varner for a little accommodation.

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:

(2019) (explaining “[s]ome transgender people may request . . . more unfamiliar pronouns, such as ze (pronounced ‘zee’) and hir (pronounced ‘hear’)).” 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.

Was this necessary? Proper? Helpful or just needlessly provocative? Woke voices swiftly decried the opinion as “denying [Varner’s] humanity,” the usual overwrought cry that does little to illuminate rather than shame. And while it is certainly true that, in another instance, it could make for a more complicated scenario than a mere accommodation (or not) of the litigant’s request, there was no motion before the court seeking an order to compel the government to use Varner’s preferred pronouns upon pain of contempt.

There will almost certainly come a time when these issues will be squarely on a circuit court’s plate and require the court to answer the questions beyond a court demonstrating the courtesy due every litigant when it costs the court nothing. This opinion might be instructive, but it just wasn’t necessary. Indeed, when the issue isn’t before the court, it’s not proper.

26 thoughts on “5th Circuit’s Judge Duncan Begs Pronoun Controversy

  1. B. McLeod

    Read narrowly, it is a bizarre request. Unless the appellant is appearing for argument pro se, nobody will be “addressing” the appellant.

    1. SHG Post author

      Pro se litigants occasionally make bizarre requests. It’s one of the reasons judges give them greater latitude than a lawyer, who should know better.

      1. B. McLeod

        Reading the opinion, I see that none of this was on the merits. The court determined the district court lacked jurisdiction over Varner’s attempt to change his name on the judgment of conviction. As a result the appellate court also lacked subject matter jurisdiction (doctrine of derivative jurisdiction), and had no power to make any ruling in this case beyond vacating the district court’s decision for lack of subject matter jurisdiction. End of story. No procedural motions filed in the case needed to be (or should have been) taken up. The whole discussion of the motion is predatory bullshit and both the majority and dissent are show-boating.

        1. SHG Post author

          Can’t blame the dissent for responding to the majority, having written an opinion even though there was no need to or, arguably, jurisdiction to entertain the motion.

          1. B. McLeod

            Doesn’t really matter. Neither part of the opinion can be cited as authority. All of the ink that isn’t discussing the jurisdictional issue is a nullity. It amounts to judges putting their personal opinions of record for PR purposes.

  2. Guitardave

    So you’re saying if a man just happens to find a nice honing stone and some oil setting on his bench, he shouldn’t whip out his favorite axe and touch up the edge a bit? You’re no fun at all.

  3. Richard Kopf

    SHG,

    The Fifth Circuit is evidently looking for work. I wonder what their thoughts are on the Oxford comma.

    All the best.

    RGK

      1. Kathryn Kase

        It might please the Fifth Circuit to know that that guardian of Spanish, the Real Academia Española in Madrid, has rejected efforts to substitute “[email protected]” or “todes” instead of the masculine “todos” (everyone). Noted writer Arturo Pérez-Reverte (also a member of the Real Academia) has termed these efforts, which purport to make Spanish “more inclusive” and less male-chauvanist, idiotic and destined to prevent professional writers from writing clearly.

        OTOH, the Fifth Circuit hasn’t been big on applying international law to domestic cases, so it may not care what the Real Academia or Pérez-Reverte has to say, and in a foreign language, to boot.

      1. Richard Kopf

        Jake,

        Agreed.

        Last summer, my grandchildren sent me a text that read: “Let’s eat Grampa.” I thought they were probably asking me to come home for dinner, but I brought a baseball bat in case the little monsters were terribly hungry.

        All the best.

        RGK

  4. N. Freed

    My own fear is always that when presented with an obnoxious demand for particular pronoun use that I will succumb to the temptation to use one of the breezier copulative nouns instead.

  5. Bob

    The case wasn’t being remanded, so the debate about the scope of the motion really is unnecessary. But the question about what pronouns to use to refer to Varner definitely was since the court was going to use pronouns to refer to… Varner.

    The majority opinion points out that courts, including the fifth circus itself, have been inconsistent in their treatment of the issue. And since when are appellate courts, presented with a question, not supposed to try to work out a general rule for how such questions should be decided? Here’s the issue, here’s the rule, here’s how the rule gets applied. That’s how legal analysis is supposed to work. The alternative is arbitrariness and inconsistency. And how can a court figure out a general rule without anticipating its consequences and the practicality of applying it in future cases? When I studied mathematics long ago, reduction to absurdity was a solid logical argument.

    I can’t help but feel you wouldn’t have posted this if the opinion had come from another judge. That’s a shame—I know Judge Duncan, or at least I was acquainted with him back in the day. He’s a thoughtful man and a brilliant lawyer. Strong convictions, sure, but not an ideologue or a bigot. I’m disappointed but not surprised that everyone’s trying to make him into a boogeyman.

  6. Evictus

    SHG, did you notice this was a summary calendar opinion? That means Judge Duncan had this case to screen. As part of this screening process, Judge Duncan chose to write a “summary” opinion to circulate rather than designate the case for oral argument. It is not unheard of to publish a summary calendar opinion but Judge do so on a hot button issue that has a dissent and when many are bound to question his impartiality. And of course it’s no accident the opinion strains to read the motion as broadly as it does (since that allows the court to set a wider precedent). Putting aside the merits of the decision, this is not a good look for a new judge.

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