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Judge Rules Against Donna Quixote

US Fifth Circuit Judge Kyle Duncan, shown here at his 2017 confirmation hearing (CSPAN screenshot)

In a ruling issued today, a three-judge panel of the US Fifth Circuit Court of Appeals said, “We decline to enlist the federal judiciary in this quixotic undertaking.” What quixotic undertaking is that? Let’s let the gay newspaper the Washington Blade tell what happened from its point of view:

In a move surprising no one familiar with his anti-LGBTQ record, a Trump-appointed judge on the U.S. Fifth Circuit Court of Appeals Wednesday rebuffed a request from a transgender inmate seeking to referred by her preferred pronouns.

U.S. Circuit Judge Kyle Duncan, who before Senate confirmation in 2018 sought to deny transgender student Gavin Grimm access to the school bathroom consistent with his gender identity, concluded in his 11-page opinion recognizing those preferred pronouns would “raise delicate questions about judicial impartiality.”

Duncan’s ruling not only rebuffs the request from the transgender defendant, Katherine Nicole Jett, to be addressed with female pronouns as part of her appeal, but also dead-names her in refusing to agree to her request for a name change, which a trial court had already ruled against.

Jett admittedly isn’t the most sympathetic person, even among prison inmates. In 2012, Jett was sentenced to 180 days in prison, to be followed by 15 years surprised release, after pleading guilty to one count of attempted receipt of child pornography. Her federal sentence, according to the decision, was “influenced by his previous convictions at the state level for possession of child pornography and failure to register as a sex offender.”

Deadnaming, even! Good for Judge Duncan, who wrote for the two-judge majority on the panel. This is the kind of ruling that makes one very, very glad that we have a Republican president naming federal judges. Here is the official text of the ruling in PDF form. There are three bases for Duncan’s judgment.

First, there are no legal authorities requiring that the court use a defendant’s preferred pronoun. Though different courts have adopted different practices in particular instances, there is no rule requiring it. Nor is there a law. “Congress knows precisely how to legislate with respect to gender identity discrimination, because it has done so in specific statutes,” writes Judge Duncan. “But Congress has said nothing to prohibit courts from referring to litigants according to their biological sex, rather than according to their subjective gender identity.”

Second, Duncan’s ruling shrewdly recognizes that a court choosing to compel using a litigants preferred pronoun, versus the one referring to his or her biological status, “could raise delicate questions about judicial
impartiality.” In certain cases hinging on whether a litigant should have certain rights based on asserted gender identity, a court “may have the most benign motives” in honoring that request, but in so doing, “may unintentionally convey its tacit approval of the litigant’s underlying legal position.”

Third, the inmates-cannot-be-allowed-to-run-the-asylum argument. Duncan’s ruling cites this chart from the “Pronoun How-To Guide” from the LGBTQ+ Resource Center at the University of Wisconsin-Milwaukee:

 

Duncan continues:

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. See Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995) (“A party commits contempt when he violates a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court’s order.”); see also 18 U.S.C. § 401. When local governments have sought to enforce pronoun usage, they have had to make refined distinctions based on matters such as the types of allowable pronouns and the intent of the “misgendering” offender. See Clark, 132 Harv. L. Rev. at 958–59 (discussing New York City regulation prohibiting “intentional or repeated refusal” to use pronouns including “them/them/theirs or ze/hir” after person has “made clear” his preferred pronouns).  Courts would have to do the same. We decline to enlist the federal judiciary in this quixotic undertaking.

Good heavens, a federal court striking a blow for common sense against gender ideology insanity. More, please.

about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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