LGBTQ Legal Issues

5th Circuit denies transgender prisoner's request to use female pronouns, change court records

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A federal appeals court has refused to refer to a transgender inmate by her preferred female pronouns and rejected her request to change court records to reflect her new name.

The New Orleans-based 5th U.S. Circuit Court of Appeals ruled 2-1 against a prisoner calling herself Kathrine Nicole Jett. The prisoner’s name was Norman Varner when she pleaded guilty in 2012 to attempted receipt of child pornography. Law360, NBC News and the Washington Post have coverage of the Jan. 15 opinion.

The author of the 5th Circuit opinion is Judge Stuart Kyle Duncan, an appointee of President Donald Trump whose nomination was opposed by LGBTQ advocates. Duncan had represented the Virginia school board that opposed transgender student Gavin Grimm’s request to use the boys’ restroom.

Duncan used male pronouns and referred to the prisoner as Varner rather than Jett. A dissenter used female pronounces, but also referred to the prisoner as Varner.

The prisoner told the district court she came out as a transgender woman in 2015, began hormone replacement therapy and planned to have gender reassignment surgery. A district court judge found jurisdiction and denied the request to change court records on the merits.

The district court noted the government’s argument that the prisoner improperly obtained the name change in Kentucky because she was not a resident of the state when she swore that she lived there. The district court said a new, preferred name is not a legally viable basis to amend the court records, and there is no constitutional right to have prison records reflect a new name.

In its Jan. 15 opinion, the 5th Circuit majority said the federal trial judge had no jurisdiction to consider the prisoner’s pro se motion and should not have reached the merits. In his majority opinion, Duncan said the prisoner’s request doesn’t fall into any of the recognized categories of postconviction motions. There is no clerical error, nor is there an error in the sentence, Duncan said.

Duncan also said there is no authority supporting the proposition that the appeals court may require litigants, judges, court personnel or others to use pronouns matching gender identities. The court said the 5th Circuit has gone both ways on the pronoun issue.

Duncan saw danger in using preferred pronouns. Any court that uses preferred pronouns “may unintentionally convey its tacit approval of the litigant’s underlying legal position,” Duncan said.

Duncan used the term gender-dysphoric to describe the prisoner. In a footnote, Duncan said the condition “affects a tiny fraction of people” and when it affects children, “the condition often does not persist into adolescence or adulthood.”

Duncan also said a person’s experienced gender may not be binary and included a chart of pronoun possibilities.

“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’),” Duncan wrote. “Deploying such neologisms could hinder communication among the parties and the court.”

Duncan’s opinion was joined by Judge Jerry Smith, an appointee of President Ronald Reagan. Judge James Dennis, an appointee of President Bill Clinton, dissented.

Dennis said he believed the district court did have jurisdiction to consider the prisoner’s motion. He would have denied the name change request on the merits—because there was no clerical error.

Dennis said he didn’t think it was necessary to use any pronoun in disposing of the appeal. If pronouns were necessary, Dennis said, “I would grant Varner the relief she seeks. As the majority notes, though no law compels granting or denying such a request, many courts and judges adhere to such requests out of respect for the litigant’s dignity.”

He also said the majority had wrongly misinterpreted the prisoner’s motion to ask the district court and government, in addition to the appeals court, to use female pronouns.

The prisoner’s motion had read: “Motion to Use Female Pronouns When Addressing Appellant. 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?”

By construing the motion to apply to the government and district court, the majority had issued an advisory opinion answering hypothetical questions, Dennis said.

“The majority’s lengthy opinion is dictum and not binding precedent in this court,” Dennis wrote.

Chase Strangio, a transgender advocate who is a staff attorney for the American Civil Liberties Union, agreed with the dissent’s advisory opinion argument in an interview with NBC.

The majority went “on this long advisory opinion about the legal implications of pronouns and the nature of sex discrimination and things that have nothing to do with the case or the question before it,” Strangio said.

“At this point, if the court lets this stand without, on its own, amending the opinion or rescinding it, then it ultimately makes the court look like a political body rather than a legal one,” Strangio told NBC.

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