FederalFifth Circuit Court of Appeals Strikes Down Transgender Motion to Use ‘Preferred Pronouns’

The Fifth Circuit Court of Appeals denied requests from a transgender inmate to update the judgment of confinement with a name change or use “preferred pronouns.”
January 31, 2020
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Earlier this month, the Fifth Circuit Court of Appeals denied altering a transgender prisoner’s name on prison records. The court also denied using the prisoner’s preferred pronouns, contending that setting a precedent for doing so could lead to future confusion in the federal court system.

According to the court opinion, the prisoner, Norman Varner, “pled guilty to one count of attempted receipt of child pornography” in 2012 and was sentenced to 15 years in prison followed by 15 years of supervised release.

In 2015, Varner “came out as a transgender woman” and began a medical transition with “hormone replacement therapy.”

A few years later in 2018, Varner obtained an order from a Kentucky state court for a name change to “Kathrine Nicole Jett.” Varner had sworn to be a resident of Kentucky, but was actually incarcerated at a federal prison in Pennsylvania at the time.

The court found that the “district court lacked jurisdiction to entertain” Varner’s motion to have the judgment of confinement altered with the new name because it was not a recognized motion under the federal rules of criminal procedure.

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Although Rule 36 allows for judges to correct “clerical errors,” the court noted that there was no unintentional error when Varner’s name was first written on the judgment of confinement.

Varner also requested the court to use female pronouns, stating, “[R]eferring to me simply as a male and with male pronouns based solely on my biological body makes me feel very uneasy and disrespected.”

On that issue, the court denied Varner’s request citing three reasons.

First, they contended 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.”

Second, they argued that conforming to the requests of transgender litigants could undermine the impartiality of the court, as it “may unintentionally convey its tacit approval of the litigant’s underlying legal position.”

Third, the court noted that using the preferred pronouns of litigants “may well turn out to be more complex than at first it might appear.”

The opinion included a graphic from the University of Wisconsin-Milwaukee that lists dozens of various pronouns used by gender-dysphoric persons.

Agreeing to use “him” instead of “her” has the propensity to lead to a multitude of possible pronouns.

“Deploying such neologisms,” said the court, “could hinder communication among the parties and the court.”

They also noted that in order to enforce the usage of such pronouns, as some municipalities have attempted to do, courts would need “to make refined distinctions based on matters such as the types of allowable pronouns and the intent of the ‘misgendering’ offender.”

“We decline to enlist the federal judiciary in this quixotic undertaking,” they said in their opinion, denying Varner’s motions.

Judge James Dennis, a Clinton appointee, dissented from the court’s opinion, arguing that while the requested name change did not qualify as a “clerical error” under Rule 36 and was rightly denied, the district court still had the authority to entertain the motion.

Dennis also argues that he would grant Varner’s request to use female pronouns, agreeing as the majority noted that “many courts and judges adhere to such requests out of respect for the litigant’s dignity.”

He also argued that the “the majority creates a controversy where there is none” by misinterpreting Varner’s request as something broadly applied to the court system and government in general, writing, “when she in fact simply requests that this court address her using female pronouns while deciding her appeal.”

Varner’s case is not the only out of Texas relating to gender-dysphoric individuals within the criminal justice system.

A group of three transgender persons is suing the state of Texas for its name-changing policy.

Under state law, prisoners incarcerated for a felony cannot change their name until two years after they have been released from parole or probation.

In other states, such as Kentucky, individuals can change their names regardless of their criminal records.

The plaintiffs, all unable to legally change their names in the state, argue in their brief that “incarcerated trans people who are denied the opportunity to change their names are at substantially heightened risk of depressive symptoms and suicide.”

The felonies committed by the plaintiffs and their legal names were not included in the brief.

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Daniel Friend

Daniel Friend

Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.