By Dylan Hosmer-Quint, FTC research associate

In a diatribe against decency, Fifth Circuit Judge Kyle Duncan asserted a right of federal judges to misgender litigants on Wednesday. 

Duncan’s opinion was in response to the request of a litigant, Kathrine Jett, that the court use her proper name and pronouns when referring to her during proceedings. Not only did Duncan refuse this basic act of decency, his explanation reads more as a tirade against the transgender community than an act of measured jurisprudence. 

“Congress has expressly proscribed gender identity discrimination” in some laws, Duncan writes, “but Congress has said nothing to prohibit courts from referring to litigants according to their biological sex.” In essence, he’s arguing that Congress could prohibit gender identity discrimination in federal courts, but it’s chosen not to do so, thereby tacitly approving gender identity discrimination by judges.

What’s more, under current law, it’s likely a federal judge could fire a law clerk once he found out the clerk was transitioning. Congress should fix this.

Duncan goes on to declare that referring to litigants by their preferred gender would be a “quixotic undertaking” for the federal courts. Using proper pronouns, he writes, could actually bias judges in “hotly debated issues of sex and gender identity.” He postulates that respecting a litigant’s gender identity might “unintentionally convey tacit approval of the litigant’s underlying legal position,” as if using a litigant’s incorrect name and pronouns were the status quo and not an expression of antagonism.

Duncan’s opinion was opposed in a scathing dissent by Judge James Dennis, who uses the defendant’s preferred pronouns and goes on to explain that other federal judges have respected litigants’ gender identity in other cases without biasing themselves or creating confusion of the sort Duncan imagines.

More broadly, the dissent characterizes Duncan’s hypotheticals as constituting an advisory opinion – something not based on the case or controversy at hand, and something not permissibly considered by federal courts.

Unfortunately for the defendant, Dennis found himself in the minority. Unfortunately for future defendants like Jett, Judge Duncan likely has more than 30 years of service left on the federal bench. 

The time has come for Congress to step in and prohibit all forms of discrimination in the judiciary. Without such action, we can only expect more of these opinions by judges with an agenda.