Bench Memos

Law & the Courts

Supreme Court Clerk’s Office as Pronoun Police?—Part 1

On Friday, the Supreme Court’s Office of the Clerk sent letters to two amici in the pending case of Gloucester County School Board v. G.G. that admonished them for using a caption that identified the respondent as “G.G., by her next friend and mother, Deirdre Grimm” (emphasis added). I would like to explore whether the clerk’s office was correct to do so.

I’ll offer some background in this post and then turn in the next post to a closer examination of the position adopted by the clerk’s office.

In Gloucester County School Board v. G.G., a student who is biologically female but who identifies as male claims that she has a federal legal right to use the boys’ restroom at her high school. As I explained in my National Review article on the underlying Fourth Circuit ruling, the “foundational premise” of G.G.’s claim “is that the objective fact of biological sex is some sort of arbitrary fiction ‘assigned at birth’ and that the subjective conception of gender identity is the genuine reality that demands recognition and respect.” Or, as one of the architects of the Obama administration’s transgender agenda “sternly” declared:

Here are the facts: Transgender men [i.e., women who identify as men] are men — they live, work and study as men. Transgender women [i.e., men who identify as women] are women — they live, work and study as women. [Emphasis added.]

This transgender ideology has triggered the great pronoun wars, in which lots of folks who don’t know much about grammar somehow insist that proper grammar requires that pronouns comport with a person’s declared gender identity rather than his sex. And so we get absurdities like this (from a New Republic article): “She has also tried to castrate herself by tying off her testicles.”

Just as proponents of G.G.’s legal claim insist on using masculine pronouns for her, many opponents of that claim understandably decline to do so. The Gloucester County School Board pursues that objective in the body of its merits brief by studiously avoiding any use of third-person singular pronouns to refer to G.G. (Seven justices of the Supreme Court took this same avoidance approach in a case involving a transgender prisoner.)

One catch in this case, though, is that because G.G. is a minor, she hasn’t had the authority to sue on her own but instead has done so through her mother. Consistent with her view of things, G.G. styled the caption in her complaint “G.G., by his next friend and mother, Deirdre Grimm …” (emphasis added), and the caption of the Fourth Circuit’s ruling bears that same phrasing. And in its certiorari petition and merits brief, the Gloucester County School Board followed the conventional (though, as we shall see, apparently not mandatory) practice of identifying the parties in its caption in the same terms that the ruling below used in its caption.

So anyone filing an amicus brief in support of the Gloucester County School Board faced a set of interrelated questions: What caption should the amicus brief bear? Do Supreme Court rules dictate all the particulars of the caption? And if not, should the amicus nonetheless adopt a usage (“G.G., by his next friend”) that reflects a factual understanding that the amicus believes to be both profoundly false and antithetical to the legal position that it is advancing? 


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