Court Won’t Open Pandora’s Box of Pronouns

Jan 17, 2020

The Fifth Circuit Court of Appeals denied a male federal prisoner’s motion to be addressed with female pronouns, finding that compelling the use of pronouns at the invitation of litigants could “raise delicate questions about judicial impartiality.”

The request was made by Norman Varner, a federal prisoner who appealed a lower court’s refusal to change his name to “Kathrine Nicole Jett” on the court document ordering his confinement. A lower court judge dismissed his motion because there was no “defect” in the original judgment paperwork, in that “Norman Varner” was his legal name when the documents were produced. 

Varner plead guilty in 2012 to attempted receipt of child pornography and was sentenced to 15 years in prison. Varner earlier was convicted on a state charge of possession of child pornography and failure to register as a sex offender. 

The Bureau of Prisons opposed Varner’s request, stating it was unnecessary because regulations authorize staff to use Varner’s preferred name as a “secondary name or alias.” Along with the appeal, Varner filed a “motion to use female pronouns when addressing Appellant” and to “submit [his] photograph into evidence” or to “appear . . . either by phone, video-conference, or in person.” Varner’s motion states that the failure to use female pronouns “leads me to feel that I am being discriminated against based on my gender identity” and “[r]referring to me simply as a male and with male pronouns based solely on my biological body makes me feel very uneasy and disrespected.”

Judge Stuart Kyle Duncan issued the opinion on behalf of the appeals court and wrote that first, no authority permits a court to 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.” This is especially true when suit is related to whether the people should be treated according to their wishes as opposed to their birth sex. 

Third, permitting a litigant to demand use of their preferred pronoun will open pandora’s box. “If a court orders one litigant referred to as “her (instead of “him”), then the court can hardly refuse when the next litigant moves to be referred to as “xemself” (instead of “himself”). Deploying such neologisms could hinder communication among the parties and the court. And presumably the court’s order, if disobeyed, would be enforceable through its contempt power.” The court cited to a complex and confusing pronoun chart distributed by the University of Wisconsin-Milwaukee. 

The three-judge panel ruled the lower court lacked jurisdiction to even consider the prisoner’s request because Varner’s motion was unauthorized by any statute. 

The court concluded: “We decline to enlist the federal judiciary in this quixotic undertaking.” 

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