The Fifth Circuit Rejects the Lie of Transgender Pronouns

A person holds up a flag during rally to protest the Trump administration’s reported proposal to narrow the definition of gender to male or female at birth at City Hall in New York City, October 24, 2018. (Brendan McDermid/Reuters)
A victory for biological truth, and for linguistic truth

Cultural progressives, who reject the very humanity of unborn children but confidently assure us that there are upward of 70 distinct genders, tend to have an uneasy relationship with the truth. And the proliferation of transgender pronouns — the use of biologically inaccurate pronouns to describe those afflicted with gender dysphoria — is among the more pernicious tools in the broader arsenal that progressives use to have us question that truth.

Earlier this month, in U.S. v. Varner, a divided panel of the U.S. Court of Appeals for the Fifth Circuit boldly refused to appease those who would muddle truth. Over the dissent of a Clinton-nominated judge who used female pronouns in his opinion to refer to the biologically male defendant, the majority refused to subordinate the integrity of the judiciary to a litigant who had moved to require the court to address him as something other than what plain English would indicate he is. In so doing, the Fifth Circuit panel has provided a roadmap for how public officials interested in preserving the commonality and vitality of the English language can resist contemporary progressivism’s attempts to obfuscate truth through the propagation of biologically inaccurate and linguistically imprecise transgender pronouns.

Writing for the Varner majority, Trump-nominated judge Kyle Duncan first observed that “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, because “federal courts today are asked to decide cases that turn on hotly-debated issues of sex and gender identity,” Judge Duncan feared that the court’s use of subjectively felt but biologically inaccurate pronouns would “unintentionally convey” a “tacit approval of the litigant’s underlying legal position.” Third, referring to “Pronouns—a How To Guide,” a colorful five-column-by-nine-row matrix from the University of Wisconsin–Milwaukee LGBTQ+ Resource Center, Duncan argued that “deploying such neologisms” could “well turn out to be more complex than at first it might appear” and could “could hinder communication among the parties and the court.”

Ultimately, the panel majority logically “declined to enlist the federal judiciary in this quixotic undertaking.” Duncan’s courageous refusal to engage in it amounts, in progressive parlance, to “deadnaming” or “misgendering.” For transgender activists and the rest of the “woke” mob, such rogue behavior is akin to malicious aggression. But it is reflective of both the biological truth that sex is immutable and the linguistic truth that, for a language to remain viable, words must have readily discernible meanings.

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.”

To be complicit in the legitimization of transgender pronouns is, in short, to assist the mainstreaming of a destructive lie. In warping our language to promote the lie, we hinder our  ability to stand athwart its corrosive effects. The precise use and ubiquitous acceptance of words is a necessary precondition for the survival of a common language; that is doubly true when the words at issue are not abstruse but function as basic means by which we distinguish between the two sexes. True, Antonin Scalia once warned that “words change meaning, and often in unpredictable ways.” But surely that dynamic cannot apply to rudimentary linguistic building blocks such as pronouns.

Let us state the obvious: A man remains today a man, and a woman remains today a woman. To pretend otherwise, however well intended the obfuscator may be, is a lie against human nature and leading already to the Orwellian “gender transitioning” of innocent preteens.

The Fifth Circuit has blazed a trail for public officials who would seek to defend biological and linguistic truth against the relativists. It is crucial that other judges and politicians alike now follow Judge Duncan’s lead. Nothing less than truth itself is at stake.

Josh Hammer is editor-at-large of The Daily Wire, of counsel at First Liberty Institute, and a former judicial law clerk on the U.S. Court of Appeals for the Fifth Circuit.

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