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US 5th Circuit Court Judge Refuses to Call Transgender Woman by Female Pronouns

Judge Stuart Kyle Duncan, a Trump appointee who sits on the 5th Circuit Court of Appeals in New Orleans, is refusing to use a transgender woman's proper pronouns. Screenshot via CSPAN.

Judge Stuart Kyle Duncan, a Donald Trump-appointed federal appeals court judge, is refusing in court to refer to a transgender woman by her proper pronouns, claiming that doing so could “raise delicate questions about judicial impartiality.” The transgender woman, a 38-year-old federal inmate in Lexington, previously filed a motion in which she asked the court to refer to her using female pronouns and to use her preferred name, Kathrine Nicole Jett, rather than her birth name, Norman Varner.

“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?”, Jett asked.

‘Deeply Disturbing’

Sasha Buchert, a senior attorney for LGBT rights organization Lambda Legal, told Deep South Voice that she considers the decision “mean-spirited,” but Judge Duncan, had already established an extensive anti-LGBT record by 2017—the year Trump nominated him to the US 5th Circuit Court of Appeals in New Orleans, which is where he decided Jett’s case on Wednesday.

“You know, this is something that is extremely rare—that a court goes out of its way to use the wrong pronouns to refer to transgender litigants,” Buchert told DSV. “All it takes is a footnote in the brief to explain that they’re choosing to honor who she is, and it was just deeply disturbing to read, considering that we did a lot of work to amplify his record when he was in the judicial nominations process.”

In 2017, Lambda Legal wrote a letter to US Senate Judiciary Chairman Chuck Grassley, a Republican, and Ranking Member Dianne Feinstein, a Democrat, urging them to oppose the Duncan nomination.

“Mr. Duncan has built his career around pursuing extreme positions that target members of the LGBT community, and especially transgender Americans. … We are particularly concerned by the fact that, for the majority of his professional life, Mr Duncan’s career has been dedicated to advancing positions that seek to marginalize, and often vilify, groups who do not conform to his ultraconservative social views,” reads Lambda’s letter, dated November 14, 2017.

During Duncan’s hearings in April 2018, US Senator John Kennedy of Louisiana vouched for him. But US Senator Elizabeth Warren, now a Democratic presidential candidate, spoke out against Duncan’s nomination on the Senate floor, saying he was one of many justices who Trump picked at the behest of wealthy interests.

“With Donald Trump as president, these same interests sense a once-in-a-lifetime opportunity to reshape our courts for years to come, and they’re working to stack our courts with narrow-minded elitists and right-wing radicals,” the Massachusetts senator said. “Stuart Kyle Duncan … is one of those nominees. 

“Mr Duncan has spent his career working to restrict civil rights in the United States over and over again. He sought to tilt the scales of justice against women, against LGBTQ Americans, and against people of color. Mr Duncan’s record of supporting discrimination is quite lengthy.”

In his April 2015 book, “Marriage, Self-Government, and Civility” (which he published just months before the US Supreme Court struck down all state-level bans on marriage rights for same-sex couples), Duncan wrote that same-sex marriage “imperils civil peace.” That year, he organized an amicus brief that 15 conservative states joined, urging the Supreme Court against ruling that gay and lesbian couples have a right to marry. Duncan has also defended anti-gay causes in Louisiana and Alabama.

In North Carolina, Duncan represented the two state lawmakers behind the State’s House Bill 2, the so-called “bathroom bill,” which barred transgender people from using public restrooms that correspond with their gender identity. Lambda’s letter also noted that Duncan backed the US Supreme Court Hobby Lobby case that ruled businesses do not have to provide health insurance that covers contraception for women if the owners cite a religious belief that conflicts with the use of birth control.

‘He’s Made His Animosity Very Clear Toward the LGBTQ Community’

In his January 15, 2020 decision on Jett’s request to be referenced by her preferred name and female pronouns, Judge Duncan took care to use male pronouns as he denied the request.

“In conjunction with his appeal, Varner also moves that he be addressed with female pronouns,” Duncan wrote. “We will deny that motion.”

Duncan ruled against Jett’s request to be called by her preferred name, claiming that a Kentucky state court’s 2018 order changing her name from “Norman Varner” to “Kathrine Nicole Jett” was “improperly obtained,” because she was living as an inmate in a Pennsylvania prison at the time.

US Senator Elizabeth Warren (D-Mass.) cited Judge Duncan’s anti-LGBT record when she argued against his appointment during 2018 confirmation hearings. Photo by Ashton Pittman.

On Wednesday afternoon, Buchert, the Lambda senior attorney, said the opinion confirmed the fears the organization raised in 2017, noting that Duncan once defended a public school policy “prohibiting students from using restrooms that are safe and consistent with their gender identity.”

“This is somebody who has made personal statements saying marriage equality would ‘imperil civic peace.’ He’s basically made his animosity very clear toward the LGBTQ community, and we said in our community that this is not someone who is going to be able to provide equal justice under the law to LGBT litigants. And today’s decision underscores that serious concern,” Buchert said.

“It’s not just the fact that she’s not getting referred to appropriately and with dignity in the courtroom,” the attorney continued. “It’s that this [judge] is not someone who is going to be able to provide fair and impartial justice. He’s sitting on the federal judiciary and he should be able to do that, but it’s clear based on his record and longstanding animus that he wouldn’t be able to do that and he proved that today.”

Judge Jerry Edwin Smith, whom President Ronald Reagan appointed to the 5th Circuit in 1987, co-signed Duncan’s opinion on Wednesday. The other member of the three-judge panel, though, James L. Dennis, disagreed with the decision, accusing the majority of “creating controversy where there is none.”

“In my view, Varner is simply requesting that this court, in this proceeding, refer to Varner using her preferred gender pronouns. … 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,” Dennis, whom President Bill Clinton appointed in 1995, wrote in his dissent.

‘You’d Have to Go Back Decades

DSV asked Buchert if she or Lambda Legal were aware of any other federal cases in which a federal judge had refused to honor a transgender person’s wishes to have their proper pronoun used. She could only think of one other case in recent decades.

Last March, Judge James C. Ho, another Trump appointee in New Orleans who sits on the 5th Circuit Court of Appeals, explained in a decision that he was using male pronouns to refer to a transgender woman because the Texas Department of Criminal Justice listed her “as a male” and assigned her “to a male only prison.” Ho also cited a 1973 case, Frontiero v. Richardson, which claimed that “[S]ex … is an immutable characteristic determined solely by … birth.”

Duncan and Ho are the only two examples Buchert said she could think of in which a federal judge had refused to a use a transgender person’s proper pronouns.

“You’d have to go back decades to see judges going out of their way to intentionally use the wrong pronoun for litigants,” Buchert said. “The decision is mean-spirited overall. The fact that Judge Duncan wasn’t able to respect her humanity and dignity in a court of law is profoundly disturbing.”

In Judge Ho’s 2019 decision in Gibson v. Collier, he denied a request from the Texas inmate, Vanessa Lynn, to have the state pay for her to have gender-confirmation (also known as sex-reassignment) surgery, writing that “a state does not inflict cruel and unusual punishment by declining to provide sex reassignment surgery” because “it cannot be cruel and unusual to refuse to provide treatment that no other prison has ever provided.” The judge referred to Lynn by her birth name, Scott Lynn Gibson.

“He has lived as a female since the age of 15 and calls himself Vanessa Lynn Gibson,” Judge Ho wrote.

Prisons are required to provide essential medical care to inmates, Ho wrote, “but that does not mean prisons must provide whatever care an inmate wants.” Even so, Ho admitted that Lynn “has averred acute distress,” for which the State had provided therapy and counseling.

“He is depressed, has attempted to castrate or otherwise harm himself, and has attempted suicide three times (though he says that gender dysphoria was not the sole cause of his suicide attempts),” Ho wrote. “His prison medical records reflect that he has consistently denied any suicidal urges. But in this litigation, Gibson has averred that, if he does not receive sex reassignment surgery, he will castrate himself or commit suicide.”

Judge Jerry Edwin Smith was also on that panel last year, and as in the more recent opinion, he co-signed Ho’s opinion. Judge Rhesa Hawkins Barksdale, whom President George HW Bush appointed to the court in 1990, dissented.

‘Mental and Physical Anguish’

After the 5th Circuit ruling in the case last March, Lynn’s attorneys filed an appeal to the US Supreme Court, noting that Texas had refused to even have her evaluated for surgery and that therapy “(had) not worked to cure” her. Failure to provide her with the necessary treatment, the appeal claims, violates the Eight Amendment’s prohibition on “cruel and unusual punishment” because it would cause further emotional torment and possibly lead to her death. 

The high court denied the request for an appeal last month, meaning that Judge Ho’s decision will stand.

The appeal described, in detail, Lynn’s attempts to castrate herself by “tying a string around [her testicles] until they are swollen and dark purple, causing her severe pain.”

“She does this to ‘stop the testosterones [sic] from entering into [her] body’ and ‘to destroy [her] testicles’ because “the pain of having them is overwhelming and [she] cannot cope. She is in “[constant] mental and physical anguish,” the appeal reads.

The US 5th Circuit Court of Appeals hears cases, like Lynn’s, which originate in Texas, Mississippi, and Louisiana. In its 2017 letter to US Senate leaders opposing the nomination of Duncan and two other Trump picks, Lambda cited a 2016 Williams Institute report that estimated around 772,000 LGBT live in those three states, but “are more likely to lack employment protections, earn less than $24,000 a year, and report that they cannot afford food or health care than anywhere else in the country.”

“If confirmed to the bench, these dangerous nominees will increase the likelihood that LGBT people living in these states will continue to experience discrimination with no meaningful access to justice in their lifetimes,” Lambda wrote. “We urge you to oppose them.”

The GOP-controlled US Senate approved all three nominees.

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