As of this writing, Donald Trump has successfully appointed more than 180 judges to the federal bench. That’s a record number, given the amount of time he has been in office. These judges will wield power for the rest of their natural lives, meaning the damage Trump does during his relatively short time bloviating from the Oval Office will achieve an air of permanence through his judges’ actions over the next generation.
Most of the damage Trump judges do will be big and obvious. No serious climate change legislation will survive them; all manner of voter suppression will be allowed by them. The rights of women, members of the LGBTQ community, and other minorities will be curtailed by courts stacked with Trump’s overwhelmingly white, male, Christian jurists. Unless you look, pray, and have sex exactly the way they want you to, Trump judges are going to give you a very hard time in court.
But some of the damage Trump judges do will be less visible. It will be personal, and the decisions will apply only to a relatively small number of Americans, individuals trying to live their lives with dignity. Trump judges will deny the most minor legal victories to people from underrepresented and vulnerable communities—because they can. As the headline to an influential article by The Atlantic’s Adam Serwer put it, “The Cruelty Is the Point.”
One of those unnecessarily cruel and entirely bigoted opinions was issued by Judge Stuart Kyle Duncan last month. Before his appointment by Trump, Duncan spent several years litigating anti-LGBTQ cases as general counsel for a right-wing “Christian” group called the Becket Fund. We warned Nation readers about Duncan in July, when we highlighted seven of Trump’s most dangerous appointments to the court. Duncan’s anti-LGBTQ bias is a matter of record, yet the Senate gave him a lifetime appointment anyway.
The latest victim of that bias is Kathrine Nicole Jett, a transgender woman who is in federal prison. She asked that her name be changed in her prison records, including court documents, from her pretransition name; she also asked that the court, in its proceedings adjudicating whether she was allowed to change her name, refer to her as “her.”
Writing for a three-judge panel on the Fifth Circuit Court of Appeals, Duncan said no. He was joined by Judge Jerry Smith, a Ronald Reagan appointee who is still alive, which should serve as a reminder of just how long these Trump judges will wield power. Judge James Dennis, a Bill Clinton appointee, dissented.
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That this opinion was published at all represents a high level of judicial antipathy toward Jett and the transgender community. She is a pro se plaintiff (meaning she’s not represented by a lawyer) filing from prison. Her case raises no grave constitutional concerns or questions of precedent. In fact, there isn’t a lot of disagreement on the law here: All three judges agreed that, as a general principle, judges can call people whatever they want. Even if the panel disagreed with Jett, it could have simply dismissed the case without an opinion or issued an unpublished ruling. There was no reason to haul this case out in the open and insult not just Jett but the entire transgender community with this opinion.
That is, unless insulting the transgender community was Duncan’s goal from the beginning. After all, this is the lawyer who served as lead counsel in the case opposing Gavin Grimm, a transgender teen who sued a school board in Virginia to use the bathroom of his choice. Duncan’s 10-page opinion in the Jett case is a disgusting highlight reel of anti-trans bigotry and pettiness.
Here’s how he opens his argument denying Jett’s motion: “No authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity.” Using “gender-dysphoric” is, to many minds, a low-key slur. It suggests transgender people suffer from a psychological disorder. It’s exactly the same kind of psycho-bigotry that people once used to dismiss gays and lesbians as mentally deranged.
Duncan goes on to point out that many courts do use the appropriate pronouns, as a courtesy. He gives no explanation why such courtesy is too high a bar for him here but instead weakly offers that referring to litigants by their preferred pronouns would be an indication of bias toward the litigants’ point of view.
Of course, the opposite is true: It’s the refusal to extend the slightest courtesy to people that illustrates a judge’s true bigotry against their cause. If you can’t even call a transgender woman “she” when she asks you to, how can you possibly be impartial when she asks you to affirm her rights? Duncan’s refusal to write “she” instead of “he” in an opinion tells you all you need to know about his hostility toward transgender rights.
At the end of the opinion, Duncan does what is always the last howl of those with the intellectually weaker argument: He invokes the slippery slope and argues that if we call this one woman a woman, then soon our entire language will be overrun by strange new pronouns. “If a court orders one litigant referred to as ‘her’ (instead of ‘him’),” he writes, “then the court can hardly refuse when the next litigant moves to be referred to as ‘xemself’ (instead of ‘himself’).” The horror!
The correct legal counterargument to this slippery slope of trash is to remind Duncan that the actual case and controversy is over calling a woman “she.” And the correct moral response is: So what? So what if future litigants would like different pronouns? So what if they request forms of linguistic respect not yet invented? What is it about judges like Duncan that they act as if common courtesy amounts to the destruction of their most sacred traditions?
Trump has signed the country up for a generation of this kind of cruelty and pettiness. Duncan is 48 and has been on the bench less than two years. By 2050, we could all be living, peacefully, in a pansexual, borderless commune, but this guy will still be there, getting his undies in a twist every time a woman keeps her surname after marriage.
Be kind to one another, because Trump judges will never be kind to you.
