Trump judge lashes out at a transgender litigant in a surprisingly cruel opinion

Federal appeals courts hear cases that impact the rights of millions. They decide matters with billions of dollars at stake. They sometimes hear cases where thousands of lives hang in the balance.

United States v. Varner is not one of those cases. The main thing at stake in Varner is whether three judges will treat a woman with courtesy or with needless cruelty.

Two of them chose the latter option.

The case involves Kathrine Nicole Jett, a trans woman who is incarcerated in a federal prison. (Jett does not appear to use the name “Varner,” but for the sake of clarity, this piece will refer to her case as United States v. Varner because that is the only name the courts have assigned to it.) Jett made a couple of requests from the federal judiciary relating to her transition from male to female. She asked that her name be changed on certain court documents from “Norman Keith Varner” to “Kathrine Nicole Jett,” and that judges hearing her case refer to her as a woman and use feminine pronouns.

The name change request was denied on procedural grounds (although the judges hearing the case disagree about why this request should be denied, no judge suggested it should be granted). But the question of how individual judges should refer to a transgender person does not appear to be answered by any law. All three judges hearing the Varner case appear to agree that this decision is entirely up to their discretion.

Unfortunately for Jett, she drew a panel of judges dominated by two unusually conservative Republicans. The author of the Court’s opinion in Varner, Judge Stuart Kyle Duncan, spent part of his career as general counsel to a leading Christian right law firm and litigated multiple cases seeking to restrict LBGTQ rights.

Among several other cases, Duncan defended the state of Alabama’s failed attempt to strip a lesbian mother of parental rights over her adopted child. He filed a brief arguing against marriage equality in the Supreme Court’s landmark Obergefell v. Hodges (2015) case. And he represented a school district seeking to bar a trans student from using the bathroom that aligns with his gender identity.

Duncan’s nomination to the United States Court of Appeals for the Fifth Circuit was widely opposed by civil rights groups, who noted that anti-LGBTQ litigation made up a significant amount of Duncan’s law practice.

Judge Duncan’s opinion in Varner confirms these groups’ fears. The thrust of Duncan’s opinion is that even though he could use female pronouns and refer to Jett as a woman as a matter of courtesy, no one can make him. So he won’t.

There are no broader legal stakes here — only the question of whether Duncan and his fellow Republican colleague, Judge Jerry Smith, will afford Jett a modicum of dignity. Duncan and Smith opted for cruelty.

Moreover, while Duncan’s opinion on this issue has little legal significance, it sends a pretty clear message about whether transgender litigants can get a fair hearing in the Fifth Circuit. Few lawyers have done as much anti-LGBTQ legal work as Kyle Duncan. But Duncan is hardly an ideological outlier on a court that’s dominated by Republican appointees.

If the court’s judges are so contemptuous of trans people that they will take swipes at them when the stakes deal only with an individual, imagine what they will do when fundamental questions about the rights of transgender Americans come before their court.

Nothing prevents judges from treating transgender litigants with courtesy

All three of the judges who heard this case — Duncan, Smith, and dissenting Judge James Dennis — agree on one thing: Judges have discretion to decide how they want to refer to transgender litigants. Duncan acknowledges that “federal courts sometimes choose to refer to gender-dysphoric parties by their preferred pronouns.” And he notes that “on this issue, our court has gone both ways.”

Duncan cites nine federal court decisions where judges agreed to requests from trans litigants like the one Jett made. As Dennis notes in his dissent, though “no law compels” a judge to refer to a trans litigant by the correct pronouns, “many courts and judges adhere to such requests out of respect for the litigant’s dignity.”

The decision of whether to misgender a litigant appears to be entirely up to each judge.

Nevertheless, Duncan chooses not to grant Jett’s request. He justifies this decision through a combination of tactics — exaggerating the nature of the relief that Jett requested, selectively applying judicial ethics, and warning that some future judge may have to refer to a future litigant by a nontraditional gender-neutral pronoun such as “xe” or “hir.”

Much of Duncan’s opinion rests on a claim that “no 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.” Perhaps Duncan is right about this claim. But, as Dennis points out in dissent, Jett did not seek a broad order requiring “litigants, judges, court personnel, or anyone else” to refer to her as a woman.

Instead, here is the text of her motion:

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?

Thus, as Dennis writes, Jett “is simply requesting that this court, in this proceeding, refer to [her] using her preferred gender pronouns.”

Similarly, Duncan argues 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.” He notes that “federal courts today are asked to decide cases that turn on hotly-debated issues of sex and gender identity.” And he cites a provision of the Code of Conduct for United States Judges that requires judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

That provision does, indeed, exist. But another provision states that “a judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.” Duncan offers no explanation for why the provision he relies on should trump another.

In any event, Duncan’s claim to impartiality fails on its own terms. Duncan is correct that “federal courts today are asked to decide cases that turn on hotly-debated issues of sex and gender identity.” By pointedly choosing to refer to Jett as a man, and then explaining his decision to do so in a published opinion, Duncan does not convey that he is an impartial judge with no view on trans rights. To the contrary, he rather emphatically conveys that he has chosen a side — and it’s not the side of LGBTQ rights.

If Duncan wished to avoid appearing to take sides on whether Jett is a man or a woman, he could have, as Judge Dennis suggests in dissent, simply avoided using pronouns altogether in the court’s opinion.

The silver lining for transgender litigants is that Duncan neither claims he is resolving a pressing legal dispute over trans rights nor claims that other judges cannot treat trans litigants with courtesy. His decision to misgender Jett is not binding on lower courts. Indeed, Duncan’s decision appears to serve only one goal.

The cruelty, it seems, is the point.