Culture War In The Courts: Federal Appeals Panel Rejects Transgender Pronouns

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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.

Read the rest of the story HERE.

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