Bench Memos

Transgender Grammar

One peculiarity of the case of Burt v. Titlow that the Supreme Court decided today (and that I discussed briefly here) is that the imprisoned habeas petitioner, Vonlee Nicole Titlow, is a “transgender female”—i.e., a man who thinks he’s a woman. Some briefs (including the state of Michigan’s) use male pronouns for him, while other briefs (including the federal government’s) use female pronouns.

In his lead opinion for the Court, Justice Alito ducks the issue by avoiding pronouns altogether. But Justice Sotomayor, in her concurring opinion, and Justice Ginsburg, in her opinion concurring in the judgment, use female pronouns.

Titlow is biologically a male and continues to be recognized as a male under Michigan law. (Among other things, he is serving his sentence in a prison for men.) As the natural reality comports with state law, I don’t see on what basis the U.S. Department of Justice and Justices Sotomayor and Ginsburg refer to him as though he were female.

Addendum: As an example of the absurdities that this politically correct usage can lead to, consider this sentence from a recent New Republic article: “She has also tried to castrate herself by tying off her testicles.”

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