Last week, Judge Stuart Kyle Duncan of the of the United States Court of Appeals for the Fifth Circuit issued an opinion announcing his opposition to using a transgender litigant’s correct name and preferred gender pronouns.
Katherine Nicole Jett, a federal prisoner since a 2012 conviction, filed a motion in court to change the name and gender marker on portions of her case file in order to accurately reflect her legally changed name and her gender identity. Ms. Jett could not afford a lawyer and represented herself in the proceeding.
In Ms. Jett’s motion, she stated, “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?”
What should have been a straightforward matter was instead met with hostility.
Though the court denied the motion on technical grounds, Judge Duncan went out of his way to express his views that courts need not address transgender litigants by their names or preferred gender pronouns. Judge Duncan argued that no law requires them to and because he personally finds the existence of transgender people to be controversial.
Judge Duncan’s opinion is of course wrapped up in dense legal rhetoric, but he sets down no rules actually prohibiting courts from treating transgender people with respect. So it’s only his opinion.
And while we understand the opinion doesn’t do anything legally, it’s both deliberately harmful and cruel.
Prior to his appointment to the federal bench by the Trump Administration, Judge Duncan dedicated his career to promoting anti-transgender discrimination and walking back civil rights. As a litigator, he fought in court to defend North Carolina’s notorious anti-transgender bill HB2 and served as opposing counsel against transgender student Gavin Grimm who sought to use public school facilities that matched his gender identity.
At the Transgender Legal Defense & Education Fund (TLDEF), we maintain a growing team of attorneys and staff who by and large identify as transgender. In reviewing Judge Duncan’s opinion, Alejandra Caraballo — a TLDEF staff attorney and transgender Latina — said it best, “This is laying the groundwork to openly use the federal judiciary to harass, demean, and deny basic dignity to transgender litigants.”
In a dissenting opinion, Judge James Dennis stated, “As the majority notes, though no law compels granting or denying such a request, many courts and judges adhere to such requests out of respect for the litigant’s dignity.”
Names are significant and often serve as the precursor to an email signature or business card that identifies who we are. More often than not our names serve as a first impression. When transgender people are recognized by our names and preferred gender pronouns, we are given a small, but powerful indicator of our ability to navigate the world a little more safely and without fear of bias or discrimination.
For TLDEF’s Name Change Project, we know that a transgender person legally changing their name increases personal safety and well-being and removes the fear of discrimination from accessing basic opportunities like completing an employment application or scheduling a doctor’s appointment. More than 60 percent of transgender people who seek TLDEF’s help with legally changing their name live below the federal poverty line. And more than 60 percent identify as transgender people of color.
Four years ago I found myself in a New York City courtroom standing in front of a judge. I had filed a petition for a legal name change to reflect my authentic self as a transgender woman. I remember the proud expression on my fiancé’s face who took the day off from work so he could witness this personally significant day and celebrate this milestone.
Despite being familiar with the process, I could feel a jolt of nervousness from being in front of the person on the bench perched above. However, in that brief moment as I stood in front of the judge who granted my petition, I was treated with respect and felt truly seen as I am.
That’s the kind of lived and legal reality we want to ensure for transgender people whenever they interact with our courts.
Contrary to Judge Duncan’s opinion, there’s nothing controversial about treating people — regardless of their gender identity — with basic fairness. For Judge Duncan to assume otherwise sends the dangerous message that respect and dignity are only reserved for those that fit a narrow worldview. That’s the true controversy.
Andy Marra is the Executive Director of Transgender Legal Defense & Education Fund, a national organization committed to ending discrimination based upon gender identity and expression and to achieving equality for transgender people.