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.”
Nonetheless, six years later in 2018, Jett wrote a letter to a district court in Texas announcing he had come out as a transgender woman, requesting that the name on her judgment of committal be changed consistent with her gender identity. Jett wrote she had began hormone replacement therapy in 2015 and was planning to have gender reassignment surgery in the near future to “finally become fully female.”
The U.S. government opposed Jett’s request, citing technicalities, no defect in the original judgment and Federal Bureau of Prisons regulations allowing her able to use her preferred name as an alias.
U.S. District Judge Marcia Crone construed Jett’s letter as a motion to correct her judgment of committal and denied it on the merits, reasoning among other things a “new, preferred name is not a legally viable basis to amend the previously entered judgment” and inmates have no constitutional right to have prison records reflect a new name.
Jett wouldn’t give up and made an appeal to the Fifth Circuit. Upon appeal to a three-judge panel on the circuit court, Jett made various requests, including a “motion to use female pronouns” and motions to “submit her photograph into evidence” or to “appear . . . either by phone, video-conference, or in person.”
But the Fifth Circuit panel, led by Duncan, made no such accommodations. In fact, Duncan abrogates the decision of the trial judge on the basis it “was unauthorized by any statute.”
With regard to Jett’s request the court use female pronouns, Duncan again rebuffs her on the basis that she lacks legal authority to support it.
“Congress has said nothing to prohibit courts from referring to litigants according to their biological sex, rather than according to their subjective gender identity,” Duncan writes.
Duncan goes so far as to say if a court were compelled to use those pronouns, it would “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,” Duncan writes. “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.”
Further, Duncan resists the idea of calling an inmates by their preferred pronouns because many new pronouns have been created to identity the genders of non-binary people, such as “ze” and “ximself.” Duncan attaches to his decision an image of an index card with various irregular pronouns identified by thae LGBTQ+ Resource Center at the University of Wisconsin-Milwaukee.
“Deploying such neologisms could hinder communication among the parties and the court,” Duncan writes. “And presumably the court’s order, if disobeyed, would be enforceable through its contempt power.”
Joining Duncan in the decision is U.S. Circuit Judge Jerry Smith, a Reagan-appointee judge. Dissenting from the decision, however, was U.S. Circuit Judge James Dennis, a Clinton appointee.
Dennis wrote the trial court, in fact, had authority to adjudicate a name change under Federal Rule of Criminal Procedure 36 and Jett’s request for use of her preferred pronouns isn’t a broad as the majority makes it seem. Notably, Dennis uses female pronouns in his dissent.
“In my view, Varner is simply requesting that this court, in this proceeding, refer to Varner using her preferred gender pronouns,” Dennis writes. “Not only is this the most faithful interpretation of her motion given the language she uses, it is also the narrowest.”
Further, Dennis rebukes Duncan for writing a lengthy advisory opinion in response to Jett’s request for use of preferred pronouns, calling it “inappropriate, unnecessary and beyond the purview of federal courts.”
But the majority opinion written by Duncan is consistent with his anti-LGBTQ work as an attorney prior to his confirmation. On transgender rights, Duncan represented in litigation the Virginia school that sought to bar transgender student Gavin Grimm from using the restroom consistent with his gender identity. Duncan also represented North Carolina Republican lawmakers in their attempt to defend in court House Bill 2, which sought to bar transgender people from using public restrooms of their choice.
Sharon McGowan, legal director at Lambda Legal, pointed out her organization opposed Duncan’s confirmation in 2018 on the basis of his “long history of denigrating the humanity of LGBT people,” adding his decision against Jett “demonstrates how well-founded our concerns were.”
“Judge Duncan reveals the depths of his own bias against transgender people when he claims that merely referring to a transgender person by their appropriate pronouns would somehow suggest a judge’s lack of impartiality,” McGowan said, “We could not be more troubled, or less surprised, to see this kind of decision from Kyle Duncan. Every senator who justified their vote for Kyle Duncan by professing their belief that he could actually be a fair judge owes an apology to the LGBT community.”
The Senate ended up confirming Duncan to the Fifth Circuit, which has jurisdiction over Texas, Louisiana and Mississippi, by a party-line vote of 50-47. Among those who voted for his confirmation was Sen. Susan Collins (R-Maine).