This is a single, obscure skirmish, although a particularly dispiriting one, in the larger pronoun wars. As the country struggles with questions about the legal and social status of transgender individuals — and with the parallel, emerging understanding that others may not fit into a binary, either/or gender category — pronouns have become an unexpectedly and unnecessarily heated area of contention.
For one camp, the demand for ever-more-bespoke pronouns encapsulates political correctness run amok; for the other, the refusal to accommodate their pronouns of choice signifies a deeper lack of respect.
There are any number of questions surrounding the treatment of transgender individuals, and this being America, they all seem, as Alexis de Tocqueville observed about the American tendency toward litigiousness, to end up in court. Does federal law prohibiting discrimination on the basis of sex protect transgender workers, a case now before the Supreme Court? May transgender service members serve openly in the military, as President Barack Obama permitted and President Trump has reversed?
Should government programs such as Medicare, or institutions such as the military or prisons, be required to cover or fund gender reassignment therapy? Last year, a different panel of the same appeals court rejected a claim by a transgender prisoner that prison officials in Texas violated her constitutional right against cruel and unusual punishment by refusing to cover gender reassignment surgery.
Pronoun disputes are both a byproduct of these larger fights and a separate field of battle. In one of a number of similar cases, a Virginia high school teacher was fired for refusing to use the male pronoun to refer to a transgender student who was assigned female at birth; the teacher used the student’s preferred male name, but said his religious convictions prevented him from referring to the student by the pronoun “him.” The teacher is suing, claiming that the firing violated his rights to free speech and religious liberty.
Federal judges hearing these cases have generally treated the transgender litigants with courtesy, which is to say they have used the individual’s preferred pronoun. Not Duncan. He cited the example of his fellow Trump appointee James Ho in the Texas transgender prisoner case, who said he would refer to the transgender female prisoner by the male pronoun, “consistent with” the policy of Texas prison officials.
In the latest case, Jett was an unsympathetic plaintiff who, in Duncan, faced a judge particularly unsympathetic to her plight. She pleaded guilty to attempted receipt of child pornography and was sentenced to 15 years in prison, a lengthy sentence that reflected an earlier state child-pornography offense.
And she found herself before an appellate panel that included Duncan, who in private practice had argued against same-sex marriage and had represented a Virginia school board in a lawsuit brought by Gavin Grimm, a transgender student seeking access to the boy’s bathroom. (A federal court later ruled that the school board violated Grimm’s constitutional rights.)
Despite his previously expressed hostility to transgender rights, Duncan made the astonishing argument that the court was compelled to deny Jett’s request precisely to avoid “delicate questions about judicial impartiality.” Duncan was joined by Reagan appointee Jerry Smith; a Clinton appointee, James Dennis, “emphatically” dissented.
In accommodating a litigant’s request to be addressed by the pronoun of her choice, Duncan wrote, “the court may unintentionally convey its tacit approval of the litigant’s underlying legal position. Even this appearance of bias, whether real or not, should be avoided.”
Oh, please, as if not accepting the request sends no signal whatsoever.
Duncan then conjured fears about the slippery slope of potential pronouns, going so far as to reproduce a University of Wisconsin chart of possibilities. “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’),” Duncan warned. “Deploying such neologisms could hinder communication among the parties and the court.”
Oh, please, again. Surely federal judges are capable of managing such a pronoun crisis, if it were to arise.
“I am a woman,” Jett wrote. Even in an uncivil, unyielding era, all of us — certainly federal judges endowed with enormous power and lifetime tenure — should be able to summon the grace to grant her simple request to be described that way.