Court Rejects Male Prisoner’s Motion for Preferred Female Pronouns

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A federal appeals court rejected a male federal prisoner’s request to be addressed with female pronouns in accord with his gender identity.

Judge Stuart Kyle Duncan of the U.S. Court of Appeals for the Fifth Circuit in New Orleans, an appointee of President Donald Trump, issued the opinion denying Norman Varner’s motion to be addressed with female pronouns.

In 2012, Varner plead guilty to attempted receipt of child pornography and was subsequently sentenced to 15 years in prison and then 15 years of supervised release. He had previously been convicted on a state charge of possession of child porn and failure to register as a sex offender.

The opinion notes that, in 2018, Varner asked the district court to change his name on the document ordering his committal to “Kathrine Nicole Jett,” to reflect his transgendered status. The lower court rejected the name change, stating “Norman Varner” was his legal name at the time the court’s documents were prepared.

In his motion, Varner stated failure by others to use his preferred female pronouns when addressing him “leads me to feel that I am being discriminated against based on my gender identity.”

Additionally, Varner argued that, when referred to “simply as a male and with male pronouns based solely on my biological body makes me feel very uneasy and disrespected.”

The three-judge panel ruled the lower district court lacked jurisdiction to even entertain Varner’s motion since it was not authorized by any statute.

Duncan wrote in the opinion:

[N]o authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity.

Varner’s motion in this case is particularly unfounded. While conceding that “biological[ly]” he is male, Varner argues female pronouns are nonetheless required to prevent “discriminat[ion]” based on his female “gender identity.” But Varner identifies no federal statute or rule requiring courts or other parties to judicial proceedings to use pronouns according to a litigant’s gender identity.

Second, Duncan pointed out that, “if a court were to compel the use of particular pronouns at the invitation of litigants, it could raise delicate questions about judicial impartiality.”

The judge explained in cases involving sex and gender identity, “a court may have the most benign motives in honoring a party’s request to be addressed” with preferred pronouns, yet at the same time “may unintentionally convey its tacit approval of the litigant’s underlying legal position.”

Third, Duncan observed granting Varner’s motion to demand use of preferred pronouns may lead to even greater complexities. Citing an LGBTQ+ pronoun chart created by the University of Wisconsin-Milwaukee, the judge explained:

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.

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. Courts would have to do the same. We decline to enlist the federal judiciary in this quixotic undertaking.

Mat Staver, chairman of Liberty Counsel, said the Fifth Circuit “made a wise decision not to open Pandora’s box of pronouns.”

“Once that door is opened, there is no limit,” he added. “This would open the floodgates to a mutiny of legal cases addressing the galaxy of delusions in today’s society.”

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