FILED: Fifth Circuit Must Reconsider Opinion that Misgenders Trans Litigant

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March 23, 2020

In a recent jaw-dropping opinion, Fifth Circuit Judge Kyle Duncan rejected a transgender litigant’s request to be referred to with her chosen pronouns. So last week, Lambda Legal filed an amicus brief asking the Court to remove the harmful and disrespectful language from the opinion.

The brief was filed on behalf of LGBT organizations including Human Rights Campaign, National Center for Transgender Equality, National LGBT Bar Association, National Trans Bar Association, and Transgender Law Center.

The legitimacy of our judicial system depends on people having confidence that they can receive fair consideration of their cases, regardless of the groups to which they belong. Unfortunately, a panel of one of the federal circuit courts of appeals has gone out of its way to send a pointed message to one community that it can expect nothing more than blatant disrespect for their humanity and public humiliation should its members come before the court.

Kathrine Nicole Jett, a transgender woman in federal prison, simply asked for her name to be corrected in her prison and court records and to be referred to with she/her pronouns. Judge Duncan went out of his way to issue his “ruling” that the litigant should be publicly misgendered, and called her “he” several times throughout the opinion.

Members of the transgender community will tell you that nothing is more disrespectful and humiliating than deliberate misgendering, particularly the act of refusing to use a person’s pronouns. For a transgender person, being misgendered feels like your identity is being denied or questioned. It’s dehumanizing. Misgendering shows contempt for the struggles transgender people face at every turn in their life against stereotypical assumptions and – when it comes from a judge – feels like the court does not recognize your existence. In contrast, it costs nothing for a person to avoid hurling this profound insult in public but respect, professional ethics, and decency.

Enter Judge Duncan, who went out of his way to issue his “ruling” that Ms. Jett should be publicly misgendered. Her request was not the subject of the appeal. The court could have dismissed the appeal without published opinion, honored her request without comment, or simply disregarded it and not used pronouns at all.

But Judge Duncan clearly had more in mind. He broadly interpreted her simple request as somehow seeking an order binding the Department of Justice and the district court. This was questionable, to put it mildly. Ms. Jett, a prisoner acting without a lawyer, never asked for such an order, and never even mentioned the Department of Justice or the district court. She simply asked for respectful treatment. For this panel at least, this was far too much to ask.

Judge Duncan provided three justifications for his demeaning opinion, each of which borders on the frivolous.

First, he argued there was no authority forcing him to respect a transgender person’s pronouns. This hollow argument is the stuff of nightmares. As the dissent makes clear, many courts and judges adhere to such requests not under the force of law, but out of respect for the litigant’s dignity.

Second, he argued that referring to the party with her correct pronouns would raise questions of impartiality. As we have seen, courts have been granting transgender litigants such decency for many years, even when those courts rule against transgender people. Judge Duncan’s gratuitous and lengthy argument that transgender people are undeserving of this basic respect, moreover, hardly demonstrates impartiality.

Finally, Judge Duncan argued that granting her request “could” lead to complex situations in the future. Any first-year law student would remind Judge Duncan that his responsibility as a judge is to address the facts of the case before him. In any case, imagined difficulties in treating other litigants with respect does not justify humiliating this one.

Judge Duncan’s record as a judge matches his record as an advocate. He defended HB2, North Carolina’s notorious “bathroom bill,” and chose to represent a school district policy prohibiting transgender students from using restrooms consistent with their gender identity in a case that went to the Supreme Court. He has spent much of his career working to undermine the freedom to marry and warning that marriage equality would “imperil civic peace” and after Obergefell v. Hodges.

During the confirmation process, Lambda Legal and other civil rights organizations raised the alarm with Senators and the public about Judge Duncan’s extremist views. We warned that his record revealed that he would be incapable of treating LGBT litigants fairly – no matter what body of law is at issue in the cases over which they may preside. We warned that Judge Duncan is not the kind of judge this country wants, needs, or deserves. His use of his judicial power to humiliate a transgender litigant now bears this out.

Now the Fifth Circuit, and the federal judiciary, own this. Judge Duncan is what he is. He may be content that transgender people know they will face public personal humiliation if they have the misfortune to appear in his courtroom, but he is not the only federal judge in the country. Indeed, he is not the only federal judge on the Fifth Circuit. We will see whether other federal judges believe their calling is to serve as respectful arbiters of disputes, or whether they prefer to be soldiers in a culture war targeting an already disadvantaged group with shame and humiliation.