By KEVIN McGILL
NEW ORLEANS (AP) — A transgender convict has lost a federal appeal to have her name changed in court records — and to have the appeals court refer to her with feminine pronouns.
The case of Norman Varner — now Katherine Nicole Jett — divided a three-judge panel of the 5th U.S. Circuit Court of appeals in New Orleans. The judges agreed, although for differing reasons, that the Varner name will remain on the prisoner’s “judgment of confinement.” That judgment was the result of a 2012 child pornography conviction and 15-year sentence, which she is not appealing.
Where the panel split was on a brief motion Jett filed in August. It had a title — “Motion to Use Female Pronouns When Addressing Appellant —” and two sentences.
“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?” it said.
Judge Kyle Duncan wrote on behalf of himself and Judge Jerry E. Smith in denying the motion, addressing the issue in more than five pages of argument and footnotes.
Duncan said granting the motion could pose complex problems including the possibility that granting such a motion might unintentionally convey a court’s “tacit approval of the litigant’s underlying legal position.”
He also cited a guide to alternative gender pronouns from the LGBTQ+ Resources Center at the University of Wisconsin-Milwaukee in saying that granting Jett’s motion could lead to complications and communications problems for the court.
“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).”
Wednesday’s opinion included a strongly worded dissent from Judge James Dennis.
Dennis said Duncan’s majority opinion was “inappropriate” and “unnecessary” and that it “creates a 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,” Dennis wrote.
The matter appears moot since the court has turned down the main point of the appeal — changing the name on the court document — Dennis said. And Wednesday’s majority opinion does not set a legal precedent, said Dennis.
“If it were necessary to write more and use pronouns to refer to Varner, I would grant Varner the relief she seeks,” Dennis added. “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.”
Duncan’s nomination to the court by President Donald Trump had been opposed in 2018 by civil rights groups that cited his work as an attorney for conservative causes, which included representing a Virginia county school board fighting a transgender high school student’s desire to use the boys’ bathroom.
In that matter, Duncan appeared to have a different view on whether using a litigant’s chosen pronoun would prejudice a case. “This petition uses ‘he,’ ‘him,’ and ‘his’ to respect G.G.’s desire to be referred to with male pronouns,” Duncan wrote in that case. “That choice does not concede anything on the legal question of what G.G.’s ‘sex’ is for purposes of Title IX and its implementing regulation.”
Wednesday’s majority opinion drew harsh criticism on social media sites from LGBTQ rights activists and praise in a news release from the conservative group Liberty Counsel.
As Norman Varner, Jett pleaded guilty to “attempted receipt of child pornography” and was sentenced in 2012 to 15 years, according to the opinion.
In April, signing her self-filed appeal as “Katherine Jett FKA Norman Varner,” she asked for a reversal of a Texas-based federal judge’s denial of her effort to change a court record, her “judgment of confinement” so her new name, approved by a state court in Kentucky in 2018, would be used in federal prison records.
Her appeal says she has undergone hormone replacement therapy and plans gender reassignment surgery.
Dennis was nominated to the 5th Circuit by President Bill Clinton; Smith, by President Ronald Reagan.
