On Wednesday, a panel of the 5th Circuit Court of Appeals refused a male prisoner’s motion that the name on his order of confinement be changed and that he be addressed by female pronouns on account of his female gender identity. The ruling on personal pronouns sets an important precedent for free speech, judicial impartiality, and the basic meaning of pronouns against the transgender movement’s bastardization of language.
The case involves Norman Varner, a federal prisoner who pleaded guilty in 2012 to attempted receipt of child pornography and was sentenced to 15 years in prison, partly due to his previous conviction on child pornography and his failure to register as a sex offender. In 2015, he claimed to have transitioned to being female, and asked to be referred to as “Kathrine Nicole Jett.”
A lower court had denied his motion and he appealed. The 5th Circuit panel ruled that the lower court lacked jurisdiction to consider the request because Varner’s motion was not authorized by any statute.
The most salient part of the ruling deals with the requested use of personal pronouns.
“Varner cites no legal authority supporting this request. Instead, Varner’s motion simply states that ‘I am a woman’ and argues that failure to refer to him with female pronouns ‘leads me to feel that I am being discriminated against based on my gender identity,'” the ruling explains.
The panel made three key arguments against such a notion.
“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.” Courts have taken two different approaches to this issue. Some have referred to litigants who identify as transgender by their preferred pronouns, while others have referred to the pronoun matching the person’s biological sex. “None has adopted the practice as a matter of binding precedent, and none has purported to obligate litigants or others to follow the practice.”
As for Varner, he has conceded that he is biologically male but argues that female pronouns are required to prevent “discrimination” based on his “gender identity.”
“But Varner identifies no federal statute or rule requiring courts or other parties to judicial proceedings to use pronouns according to a litigant’s gender identity. Congress knows precisely how to legislate with respect to gender identity discrimination, because it has done so in specific statutes. … But Congress has said nothing to prohibit courts from referring to litigants according to their biological sex, rather than according to their subjective gender identity,” the ruling explained.
The panel also argued that “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,” they explained, citing cases like Doe v. Boyertown, which involved a transgender policy allowing boys in the girls’ restroom. Taking a position on this politically-charged issue could make the court seem biased in favor of transgender litigants. “Even this appearance of bias, whether real or not, should be avoided.”
Finally, the 5th Circuit panel argued that endorsing personal pronouns would open a Pandora’s box.
“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,'” the panel wrote, citing the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
The judges referenced a pronoun usage guide from the University of Wisconsin-Milwaukee which lists 9 different kinds of pronouns. The guide includes wacky pronouns like “e/ey,” “(f)ae,” “xemself,” and more.
A pronoun guide published by the University of Wisconsin-Milwaukee.
The judges warned that granting preferred pronouns in cases like Varner’s would set a precedent that courts should use bizarre pronouns like these.
“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’),” they wrote. Such pronouns are not only silly — they would make legal proceedings much harder to follow. “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.”
“We decline to enlist the federal judiciary in this quixotic undertaking,” the 5th Circuit panel concluded.
Many transgender activists may find this ruling obnoxious, but it deserves to be celebrated for protecting basic liberties, setting a standard on judicial impartiality, and warning about the slippery slope of personal pronouns.
Gender dysphoria is a real and tragic phenomenon and those who suffer from gender confusion deserve sympathy. However, Americans should not be forced to refer to a biological male as female or vice versa. A virulent form of political correctness, which insists that whole professions must kowtow to personal pronouns, is a threat to free speech. Lawyers, just like doctors and nurses, should be able to speak in accordance with their convictions, be they for or against transgender identity.
Transgender issues are indeed politically charged, and judges should be careful to avoid partiality. When in doubt, following biology is the safer course.
Finally, these judges were spot on to warn against the Pandora’s box of personal pronouns. If a man can force others to refer to him using female pronouns, why should he not be able to force any other neologisms as well? There is no reason to suggest the personal pronouns will be limited to the nine listed by the University of Wisconsin-Milwaukee. In fact, the very idea of personal pronouns suggests that every single person on earth might have his or her own pronouns.
This is an attack on basic language and the ability to understand one another. Human biology and reproduction are binary, and grammar follows that basic truth. Intersex conditions are tragic and clearly a form of disease — the transgender movement shamefully uses intersex people to justify transgender identity, which is radically different.
In an era of confusion, this ruling is a welcome moment of sanity. Other courts should listen to this panel and follow these judges’ example.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.
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