Bench Memos

Law & the Courts

Transgender Pronoun Conflict in the Fifth Circuit

A Fifth Circuit panel yesterday (in U.S. v. Varner) divided on two questions. The first question was whether the district court properly denied the motion of a federal prisoner, Norman Varner, to change the name on his judgment of confinement to “Kathrine Nicole Jett.” On this question, the panel majority (opinion by Judge Stuart Kyle Duncan, joined by Judge Jerry Smith) ruled that the district court lacked jurisdiction to entertain the motion. Judge James Dennis, in dissent, would have affirmed the district court’s denial of Varner’s motion.

The second question—one that has already spawned a lot of controversy—was whether to grant Varner’s motion that he be addressed with female pronouns. Varner’s motion, titled “Motion to Use Female Pronouns When Addressing Appellant,” read in full as follows:

I am a woman and not referring to me as such leads me to feel that I am being discriminated against based on my gender identity. I am a woman—can I not be referred to as one?

The majority opinion understood the motion “as seeking, at a minimum, to require the district court and the government to refer to Varner with female instead of male pronouns.” The majority set forth three reasons for denying Varner’s motion. In brief (citations omitted):

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:

In dissent, Judge Dennis interprets Varner’s motion as “simply requesting that this court, in this proceeding, refer to Varner using her preferred gender pronouns.” Dennis argues that this is the “most faithful interpretation” of Varner’s motion and “also the narrowest.” Under Dennis’s proposed disposition of the other issue in the case—his request for a name change on his judgment of confinement—he says that “it is not necessary to use any pronoun in properly disposing of this appeal,” as he would simply “affirm the district court for the reasons it assigns.” But if pronouns were needed, he would use female pronouns for Varner “out of respect for the litigant’s dignity.” Dennis also contends that because, in his view, “the majority creates a controversy where there is none by misinterpreting Varner’s motion,” it has rendered an advisory opinion that “is dictum and not binding precedent in this court.”

I find Dennis’s dissent very confusing.

I have never heard of a principle of giving a request for relief the “narrowest” possible interpretation. On the contrary, for pro se litigants (persons without counsel), the usual rule is to construe their requests liberally. (By one account, the Fifth Circuit is among the four federal appellate courts that “stand at the vanguard of liberal pro se construction in the federal system.”)

Varner broadly argues that “not referring to me as [a woman] leads me to feel that I am being discriminated against based on my gender identity.” That’s not an argument that is limited to how the Fifth Circuit panel refers to him. As the majority points out, the district court’s order referred to Varner with male pronouns, as did the government in its brief. It’s reasonable to think those references are what triggered Varner’s motion. In any event, if Dennis had thought it useful to seek additional clarity on the question, he could have requested that the motion be removed from the Fifth Circuit’s summary calendar and receive full briefing.

I also don’t see how the panel majority could be expected to avoid using pronouns to refer to Varner. On the name-change issue, the majority doesn’t agree with Dennis that it could simply “affirm the district court for the reasons it assigns.” It would be extremely awkward for it to write an opinion that avoided using pronouns. Male pronouns referring to Varner appear dozens of times in the majority’s opinion. Do we really expect the court to rewrite its first sentence to read “Norman Varner, federal prisoner # 18479-078, appeals the denial of Varner’s motion to change the name on Varner’s judgment of confinement to ‘Kathrine Nicole Jett’”? Or to expend lots of effort to write around using pronouns? Dennis also has no answer to the majority’s illustration of how complex it could become to use a litigant’s preferred pronouns.

Dennis also seems clearly wrong that the majority opinion is advisory, is dictum, and is not binding precedent. The opinion isn’t advisory, as the motion is properly before the court. Nor is the opinion dictum and therefore not binding as precedent. On the majority’s understanding of the motion, the issues it addresses were presented, and the majority decided them. That’s what matters. To illustrate the point: Assume that a Supreme Court majority determined that it had jurisdiction in a case and proceeded to decide the merits. Would anyone take seriously an argument by the dissenters on the jurisdictional question that the Court’s decision on the merits was dictum and not binding precedent?

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