Seeking Judicial Courtesy in the Fifth Circuit

I am proud to be among the 83 signatories to the Legal Ethics Professors Amicus Brief in U.S. v. Varner, calling upon the Fifth Circuit en banc to vacate a panel decision refusing to refer to a transgender litigant by the litigant's requested name and pronouns. The panel in the underlying decision devoted half of its opinion to a rationale for refusing to call the plaintiff by "female instead of male pronouns." Our brief (which does not address the merits of the litigation) was written by Bruce Green of Fordham Law School, and Evan Tager, Geoffrey Pipoly, and Jacey Norris of Mayer Brown. It argues,

The way in which a court refers to a litigant is a simple matter of courtesy. Judges should be courteous to litigants, and abiding by litigants’ requests to be addressed in a particular way consistent with their identities is a critical component of courtesy. Judges should be courteous to all litigants, including transgender litigants like petitioner, or litigants with less consequential requests regarding their identity (for example, litigants who present themselves to the world using a maiden name or nickname). A litigant whose request is not respected in this regard would feel disrespected. Worse, the litigant could reasonably perceive that the judge is biased.

The panel majority should have extended Petitioner the courtesy of addressing Petitioner by the name and pronouns with which Petitioner identifies. Alternatively, the panel majority should have eschewed personal pronouns and names altogether.

You can read the entire brief here; like this blog post, it uses no pronouns of any gender. The excellent amicus brief of Lambda Legal Defense is here.