Part of Shawn Thomason’s argument on appeal of his stalking conviction and upward departure at sentence was prosecutorial misconduct of an unusual nature.

Second, Thomason argues that his conviction must be vacated because the prosecution engaged in misconduct by referring to him with masculine pronouns and with “stereotypes” like “gunman” and “boyfriend.” He also contends that the prosecution ignored his diagnosis of gender dysphoria by claiming that the women’s clothing found in his car was for JNS when the record showed that Thomason sometimes wears women’s clothing.

While it may be understandable that Thomason was troubled by his being “misgendered” by the prosecutor, given that the expectation of being gendered in the manner of one’s choosing has become a right, even as one is being prosecuted for conduct relating to the stalking of a “girlfriend,” it’s less clear how this amounts to prosecutorial misconduct that prejudiced him.

In the letter to the probation office, Thomason asked that, “to the extent possible, gender neutral pronouns be used when referring to him.” The letter said: “He prefers use of the pronouns: ‘they,’ ‘them’ and ‘their.’” But the letter itself referred to Thomason as “he” and “him” in making the request, and said that “[f]or the sake of clarity,” Thomason’s own objections to the draft report “may use the masculine pronouns.”

The court disposed of the issue by noting that even Thomason used masculine pronouns “for the sake of clarity” and there was no objection below.

Thomason did not object to the use of masculine pronouns until the end of a restitution hearing on November 12, 2019. At that point, he objected to “all 134 instances of purposeful and deliberate misgendering of me in this case as it pertains to the restitution memorandums.”

That clarity suffers from the use of the plural pronoun where the normal convention of singular would be used was not only the defendant’s view, until they decided to raise it as an issue after all other issues failed, but was validated by the court.

As the filings in this case illustrate, clarity suffers and confusion may follow when legal writing refers to a single individual as “they,” especially when the materials advert to other actors who are naturally described as “they” or “them” in the traditional plural.

Howard Bashman at How Appealing flagged this as problematic, whereupon America’s foremost expert on bad legal writing, Joe Patrice, took up the cause.

Yet again, a federal appellate panel has gone out of its way to refuse to adopt a litigant’s preferred pronouns. How Appealing reported on a recent Eighth Circuit decision by Judge Steven M. Colloton (a W. Bush judge rather than a Trump judge for a change of pace, though notoriously unqualified Trump judge L. Steven Grasz as well as another W. nominee in Judge Bobby Shepherd) that takes the appeal of a stalking conviction to wax philosophic about how hard it use to use the defendant’s preferred pronouns.

Since Joe is also the editor at ATL now that all the competent writers have left, he presumably had a finger or two in the choice of headline.

Eighth Circuit Judges Won’t Respect Pronouns Because They Lack Writing Skills, Common Decency

It’s honestly not difficult.

It’s one thing to complain that judges could, if they struggled harder to make their writing conform to the feelings of the defendant, circumscribe clarity for the sake of political correctness, but that’s not exactly Joe’s complaint. It’s not just “writing skills,” but “common decency”!

Yes, it would render the whole opinion unintelligible except for the fucking context.

Of course, the court didn’t say it would render the opinion “unintelligible,” but that it would give rise to a loss of clarity. Still, Joe ain’t buying because Chaucer.

It’s bizarre to think the court would have any trouble because the singular “they” is used in common parlance all the time regardless of a person’s pronouns. Americans use “they” to describe the actions of individuals all the time. And it’s neither improper nor new. The Oxford English Dictionary traces the singular “they” back to 1375. It feels like every time someone gets on a high horse about “new-fangled” improper English it turns out that it’s been acceptable all along and merely fell out of favor due to some unwarranted 18th century pontificating.

This argument, that the occasional use of the “singular ‘they'” can be found in writings in 1375, and “merely fell out of favor” in the 18th Century, whereupon no person who cared about the clarity of distinguishing between the singular and plural used it, is one that wins in the minds of every advocate for the affectation that every individual gets to choose his own language format and impose it on others, courts included.

But does the Eighth Circuit’s hateful refusal to wrap its writing around Patrice’s feelings make them indecent?

Unfortunately, the opinion leaves the distinct impression that this is less about clarity and more about showing the maximum level of disrespect for someone for not adhering to a specific cookie-cutter vision of the world.

Words. How do they work? Perhaps the circuit judges will consider Patrice’s plea to reject the “specific cookie-cutter vision” of language and be as brillag and slithy-toved as h. But then, would Patrice be so generous as to deem the circuit decent if they gyred and gimbled in the wabe?