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Government’s Religious Hospitals

States are not supposed to own or operate religious institutions, but they now do. This Article uncovers that across the country, church and state have merged, joint ventured, and contracted to form public, yet religious, hospitals. It traces the origins of these curious institutions to dramatic transformations over the last forty years in the political economy of healthcare and the constitutional doctrine of church and state. At stake are the foundational commitments of secular government to equal citizenship and religious freedom.

Yet, constitutional litigation offers limited recourse. In an increasingly religious marketplace, only sustained attention to the political economy can reverse the confluence of church and state. This Article proposes strategies to unite religion law and political economy and to move from religious domination to pluralism and from discrimination to equality. As government-religious institutions proliferate beyond healthcare—in schools, prisons, police departments, and child-welfare agencies—reform efforts must take on broader trends toward consolidation, privatization, and religionization of the economy.

Introduction

Waking up in a hospital, you spy a religious painting at the foot of the bed. The doctors who rush in wear white coats with the names of a religious figure and of the state. Your treatment options, they tell you, must comply with the faith tradition. Clerics on the ethics committee will approve your care. As you recover, you learn that the government owns the hospital, pays the staff, and puts the state seal on the front of the building. On the board of directors, some seats are reserved for government bureaucrats, others for members in good standing of the Church.

This experience could describe hospital care in many countries around the world. But the United States is not known for such tight-knit relationships between any church and the state. Under the Establishment Clause, governments are not supposed to own or operate religious institutions. They are not expected to impose religious tests for public office or adopt a denomination as their own.

Nevertheless, they have. This Article reveals that across the country, church and state have fused in powerful entities that deliver critical services. The government’s religious hospitals are state-governed, state-run, and/or state-owned. But religion permeates their halls. Faith dictates their charitable missions and ethical decisions. Under the banner of the state, patients may be denied healthcare for religious reasons. Public employees must display religious messages and conform their conduct to religious rules. Positions of governance and leadership, typically open to all in public hospitals, are reserved for individuals who belong to particular sects.

Sometimes the state owns the religious institution outright—like the University of Alabama’s “faith-based health system”1 1.See Warren Averett CPAs and Advisors, The Health Care Authority for Baptist Health, An Affiliate of UAB Health System: Consolidated Financial Statements, Required Supplementary Information, and Additional Information 3 (2020), https://www.legisl​ature.state.al.us/pdf/eopa/audit_reports/ExaminersPDFFiles/5956_21-091-CPA-Baptist%20​HCA.pdf [https://perma.cc/R3XE-J372] [hereinafter Baptist Health Financials].Show More with a mission of “witness[ing] to the love of God through Jesus Christ.”2 2.See Spiritual Care, Baptist Health, https://www.baptistfirst.org/patients-and-visitors/spi​ritual-care/ [https://perma.cc/6XEB-3W7U] (last visited Oct. 17, 2022).Show More Sometimes the religious and state entities become joint venturers—like Trinity Health and the University of Michigan, which agreed to run a hospital “consistent with the teachings of the Roman Catholic Church.”3 3.Amended and Restated Bylaws of St. Joseph Mercy Chelsea, Inc., art. I, § 3, art. II, § 1 [hereinafter Amended and Restated Bylaws] (on file with author).Show More Other times, a dense network of operational, managerial, or other relationships connects church and government—as at the University of Texas, the University of California, and numerous public health districts, where clinical staff and medical students must conform to religious teachings against abortion, contraception, fertility treatments, and LGBTQ-affirming care.4 4.See infra Section I.D.Show More

So how did we end up with institutions that so thoroughly merge public and religious? This Article argues that the answer lies in dramatic transformations in healthcare’s political economy and in Religion Clause doctrine over the last forty years. Neoliberalism made government-religious hospitals economically and politically attractive during a period when the Supreme Court’s erosion of the Establishment Clause made them legally plausible.5 5.Like other contested concepts, there are debates about the term’s core meaning. We focus on two central strands of neoliberal political economy—privatizing social services and valorizing market ordering over democratic governance. See David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77 Law & Contemp. Probs. 1, 6 (2014) (discussing the definition of neoliberalism).Show More These institutions, joining government authority with religious domination, undermine religious freedom and threaten equal citizenship in a pluralistic society.

From the 1980s onward, policies favoring austerity and privatization became ascendant and decimated the public sector. Public hospitals—a mainstay of cities and a natural home for public universities’ medical faculties—closed their doors or privatized as governments divested.6 6.See George Aumoithe, Dismantling the Safety-Net Hospital: The Construction of “Underutilization” and Scarce Public Hospital Care, 48 J. Urb. Hist. 1, 2–3 (2021); Michelle Ko, Jack Needleman, Kathryn Pitkin Derose, Miriam J. Laugesen & Ninez A. Ponce, Residential Segregation and the Survival of U.S. Urban Public Hospitals, 71 Med. Care Res. & Rev. 243, 244 (2014).Show More Meanwhile, rising costs prompted private hospitals to engage in a relentless drive for revenue.7 7.See, e.g., Andrew T. Simpson, The Medical Metropolis: Health Care and Economic Transformation in Pittsburgh and Houston 121 (2019) (“During the 1980s, 1990s, and 2000s, not-for-profit leaders not only drew organizational inspiration from the for-profit sector by pursuing a wave of mergers and acquisitions . . . , but were also more willing to speak in a language that echoed their corporate counterparts.”).Show More They merged and consolidated at an unprecedented and accelerating rate, nearly eradicating competition in hospital markets.8 8.See Jonathan B. Baker, The Antitrust Analysis of Hospital Mergers and the Transformation of the Hospital Industry, 51 Law & Contemp. Probs. 93, 93 (1988) (“During the early 1980s, acquisitions or consolidations occurred at the rate of roughly two hundred per year, dramatically higher than the yearly rates of fifty in 1972 and five in 1961.”).Show More

But healthcare’s political economy tells only part of the story.9 9.We use the term “political economy” to mean “the relation of politics to the economy, understanding that the economy is always already political in both its origins and its consequences.” Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1792 (2020).Show More A contemporaneous revolution in Establishment Clause doctrine abandoned principles of separationism and invited more intensive church-state partnerships.10 10.See infra Section III.B.Show More Not long ago, the government-religious hospitals we describe would have encountered rather obvious constitutional obstacles.11 11.See infra Section III.A.Show More Under the First Amendment’s Establishment Clause, a “wall of separation” was supposed to hold church and state apart.12 12.Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), in 36 The Papers of Thomas Jefferson 258, 258 (Barbara B. Oberg ed., 2009).Show More States nonetheless could fund religiously affiliated hospitals, provided they delivered secular healthcare services, refrained from discrimination in hiring, and committed to respecting their patients’ consciences.13 13.See infra notes 207–38 and accompanying text.Show More But in the last few decades, courts dismantled a number of constitutional constraints on aid to sectarian institutions. By the early 2000s, Establishment Clause doctrine aligned with neoliberal economic policies to galvanize public partnerships with faith-infused institutions. Privatization took on a religious hue.

Faced with demands for healthcare provision and education, cities, counties, and public universities stepped into this constitutionally unsettled space. And they found few options for partnership. No longer was it common to find the public hospitals that once hosted safety-net services and academic medicine. Trends toward consolidation, which escalated with each passing decade, left nearly all cities with highly concentrated hospital markets.14 14.Ninety-five percent of metropolitan statistical areas have highly concentrated hospital markets. Jaime S. King et al., Preventing Anticompetitive Healthcare Consolidation: Lessons from Five States 1, 6–7 (June 2020), https://sourceonhealthcare.org/wp-content/uploads/​2020/06/PreventingAnticompetitiveHealthcareConsolidation.pdf [https://perma.cc/5RRX-87​FJ].Show More The secular options assumed by judges and policymakers had dwindled.

Often, commercially successful religious entities were among the few potential joint venturers and partners. Most commonly, those entities were Catholic. Due to their “hierarchy and interconnectedness,” as well as their longstanding significant market share, Catholic healthcare systems had proved well-positioned to consolidate market power as neoliberalism took off.15 15.Allison Roberts, Selling Salvation: Catholic Hospitals in the Healthcare Marketplace, Canopy Forum (2019), https://canopyforum.org/2019/12/19/selling-salvation-catholic-hospi​tals-in-the-healthcare-marketplace-by-allison-roberts/ [https://perma.cc/T99U-54PC]. Today, Catholic systems hold a dominant or high market share in more than one-third of U.S. counties, where 38.7% of women of reproductive age live. Coleman Drake, Marian Jarlenski, Yuehan Zhang & Daniel Polsky, Market Share of US Catholic Hospitals and Associated Geographic Network Access to Reproductive Health Services, 3 JAMA Network Open 1, 6 (2020).Show More And these religious partners, once motivated to claim nondiscrimination, now typically insisted on a more thickly sectarian identity.16 16.Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism 271–73 (2017) (detailing this shift in social service providers and government’s role); Stephen Monsma, Putting Faith in Partnerships 270–73 (2009) (describing empirically the spectrum of religious social services from deeply sectarian and faith-infused to more ecumenical); Barbra Mann Wall, American Catholic Hospitals: A Century of Changing Markets and Missions 181–86 (2011) (describing Catholic hierarchy’s increasing extent and rigidity of control over Catholic hospitals and their conflicts with the women religious traditionally sponsoring the hospitals).Show More In this landscape, governments created new institutions where secular and sacred, public and private, share governance, ownership, and operation.

Depending on one’s point of view, the central problem of these hospitals might be privatization of public services, restriction of healthcare access, or discrimination based on sex. While we are concerned about each of these issues, our focus is on the threat to religious freedom as dominance in healthcare has been converted into religious domination backed not only by private power but by the authority of the government.17 17.For an extended argument against converting power in one social sphere into domination in another, see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983).Show More This confluence undermines equal citizenship and religious freedom in distinct and novel ways.

The promise of secular government is that equal membership in the political community will not depend on one’s religion and that the state will not impose religion on its citizens.18 18.See Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 52–53 (2007); Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692, 694–95 (1968); James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in James Madison: Writings 29, 29–36 (Jack N. Rakove ed., 1999); Thomas Jefferson, A Bill for Establishing Religious Freedom, in 2 The Papers of Thomas Jefferson 545, 546 (Julian P. Boyd ed., 1950).Show More Government’s institutions will be open to all, controlled by the people, and able to give public reasons for decisions.19 19.See generally Micah Schwartzman, The Sincerity of Public Reason, 19 J. Pol. Phil. 375 (2011) (discussing the idea of public reason); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) (same).Show More America’s religious churches and charities, by contrast, can serve co-religionists, discriminate in their choice of leaders, and give religious reasons that people of other faiths cannot understand.20 20.See Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 73 (2014).Show More

Government-religious hospitals upend this settlement and confound theories on both the left and the right about the relationship between church and state. Across the political spectrum, religion law scholars assume the existence of secular options and the absence of religious domination in the marketplace.21 21.See, e.g., Kent Greenawalt, When Free Exercise and Nonestablishment Conflict 69 (2017) (“If the government is the direct and primary source of funding for a program, religious discrimination by an organization in its employment should probably be regarded as unconstitutional, just as it would be for the government itself.”); Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 104, 150–51 (2015) (“It is sensible to rely in some part on the workings of markets to achieve accommodation’s purpose.”).Show More They broadly agree that equal membership in the political community cannot depend on one’s religion and that the state cannot prefer any denomination. One need not be a strict separationist to draw the line at a state institution that proclaims a denominational identity, imposes religious tests, and uses religious reasons.

The embrace of joint church-state institutions may not be inexorable. Preserving principles of secular government in an increasingly religious marketplace is still possible, if not through constitutional litigation, then by addressing broader trends toward consolidation, privatization, and religionization of the economy. This Article considers a range of concrete reform measures, from embracing competition policy to state provision of social services to transacting for church-state separation. In combination, these reforms would move, albeit incrementally, from religious domination toward pluralism and from religious preference toward equality.

This Article proceeds in four Parts. Examining articles of incorporation, asset purchase agreements, and management contracts, Part I explores the details of government-religious hospitals and presents a rough taxonomy of the forms they take. Parts II and III argue that major shifts in healthcare’s political economy and in Religion Clause doctrine over the last forty years together spurred the merger of church and state. The establishment of government-owned, -directed, and -operated religious hospitals came to threaten equal citizenship and religious freedom. Part IV turns to reforms. It demonstrates how antitrust enforcement, public options, and public utility regulation could reshape the political economy to remedy and forestall government-religious hospitals.

The setting of our law and political economy tale is the hospital sector, but evidence mounts that government-religious institutions may exist elsewhere. The legacy of neoliberalism, with its emphasis on privatization, drove and continues to drive religious-public collaborations—in schools, prisons, police departments, child-welfare agencies, and beyond.22 22.See infra notes 379–83 and accompanying text.Show More Alliances between religious and economic conservatives have generated transfers of public funds, services, and decision-making to religious institutions. And as in the hospital sector, seemingly unrelated changes in constitutional doctrine increasingly create a path toward merger of church and state.

  1. See Warren Averett CPAs and Advisors, The Health Care Authority for Baptist Health, An Affiliate of UAB Health System: Consolidated Financial Statements, Required Supplementary Information, and Additional Information 3 (2020), https://www.legisl​ature.state.al.us/pdf/eopa/audit_reports/ExaminersPDFFiles/5956_21-091-CPA-Baptist%20​HCA.pdf [https://perma.cc/R3XE-J372] [hereinafter Baptist Health Financials]. ↑
  2.  See Spiritual Care, Baptist Health, https://www.baptistfirst.org/patients-and-visitors/spi​ritual-care/ [https://perma.cc/6XEB-3W7U] (last visited Oct. 17, 2022). ↑
  3. Amended and Restated Bylaws of St. Joseph Mercy Chelsea, Inc., art. I, § 3, art. II, § 1 [hereinafter Amended and Restated Bylaws] (on file with author). ↑
  4. See infra Section I.D. ↑
  5. Like other contested concepts, there are debates about the term’s core meaning. We focus on two central strands of neoliberal political economy—privatizing social services and valorizing market ordering over democratic governance. See David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77 Law & Contemp. Probs. 1, 6 (2014) (discussing the definition of neoliberalism). ↑
  6.  See George Aumoithe, Dismantling the Safety-Net Hospital: The Construction of “Underutilization” and Scarce Public Hospital Care, 48 J. Urb. Hist. 1, 2–3 (2021); Michelle Ko, Jack Needleman, Kathryn Pitkin Derose, Miriam J. Laugesen & Ninez A. Ponce, Residential Segregation and the Survival of U.S. Urban Public Hospitals, 71 Med. Care Res. & Rev. 243, 244 (2014). ↑
  7.  See, e.g., Andrew T. Simpson, The Medical Metropolis: Health Care and Economic Transformation in Pittsburgh and Houston 121 (2019) (“During the 1980s, 1990s, and 2000s, not-for-profit leaders not only drew organizational inspiration from the for-profit sector by pursuing a wave of mergers and acquisitions . . . , but were also more willing to speak in a language that echoed their corporate counterparts.”). ↑
  8. See Jonathan B. Baker, The Antitrust Analysis of Hospital Mergers and the Transformation of the Hospital Industry, 51 Law & Contemp. Probs. 93, 93 (1988) (“During the early 1980s, acquisitions or consolidations occurred at the rate of roughly two hundred per year, dramatically higher than the yearly rates of fifty in 1972 and five in 1961.”). ↑
  9. We use the term “political economy” to mean “the relation of politics to the economy, understanding that the economy is always already political in both its origins and its consequences.” Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1792 (2020). ↑
  10. See infra Section III.B. ↑
  11. See infra Section III.A. ↑
  12. Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), in 36 The Papers of Thomas Jefferson 258, 258 (Barbara B. Oberg ed., 2009). ↑
  13. See infra notes 207–38 and accompanying text. ↑
  14. Ninety-five percent of metropolitan statistical areas have highly concentrated hospital markets. Jaime S. King et al., Preventing Anticompetitive Healthcare Consolidation: Lessons from Five States 1, 6–7 (June 2020), https://sourceonhealthcare.org/wp-content/uploads/​2020/06/PreventingAnticompetitiveHealthcareConsolidation.pdf [https://perma.cc/5RRX-87​FJ]. ↑
  15. Allison Roberts, Selling Salvation: Catholic Hospitals in the Healthcare Marketplace, Canopy Forum (2019), https://canopyforum.org/2019/12/19/selling-salvation-catholic-hospi​tals-in-the-healthcare-marketplace-by-allison-roberts/ [https://perma.cc/T99U-54PC]. Today, Catholic systems hold a dominant or high market share in more than one-third of U.S. counties, where 38.7% of women of reproductive age live. Coleman Drake, Marian Jarlenski, Yuehan Zhang & Daniel Polsky, Market Share of US Catholic Hospitals and Associated Geographic Network Access to Reproductive Health Services, 3 JAMA Network Open 1, 6 (2020). ↑
  16.  Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism 271–73 (2017) (detailing this shift in social service providers and government’s role); Stephen Monsma, Putting Faith in Partnerships 270–73 (2009) (describing empirically the spectrum of religious social services from deeply sectarian and faith-infused to more ecumenical); Barbra Mann Wall, American Catholic Hospitals: A Century of Changing Markets and Missions 181–86 (2011) (describing Catholic hierarchy’s increasing extent and rigidity of control over Catholic hospitals and their conflicts with the women religious traditionally sponsoring the hospitals). ↑
  17. For an extended argument against converting power in one social sphere into domination in another, see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983). ↑
  18.  See Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 52–53 (2007); Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692, 694–95 (1968); James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in James Madison: Writings 29, 29–36 (Jack N. Rakove ed., 1999); Thomas Jefferson, A Bill for Establishing Religious Freedom, in 2 The Papers of Thomas Jefferson 545, 546 (Julian P. Boyd ed., 1950). ↑
  19. See generally Micah Schwartzman, The Sincerity of Public Reason, 19 J. Pol. Phil. 375 (2011) (discussing the idea of public reason); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) (same). ↑
  20. See Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 73 (2014). ↑
  21. See, e.g., Kent Greenawalt, When Free Exercise and Nonestablishment Conflict 69 (2017) (“If the government is the direct and primary source of funding for a program, religious discrimination by an organization in its employment should probably be regarded as unconstitutional, just as it would be for the government itself.”); Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 104, 150–51 (2015) (“It is sensible to rely in some part on the workings of markets to achieve accommodation’s purpose.”). ↑

  22. See infra notes 379–83 and accompanying text. ↑

Searching for a Meaning: The Enigmatic Interpretation of Virginia’s Statutory Ban on Warrantless Searches

The modern U.S. Supreme Court tells us that the touchstone of the Fourth Amendment is reasonableness. That proposition flows logically enough from the Amendment’s text and helps explain why there are so many situations in which law enforcement does not need to obtain a warrant before conducting a Fourth Amendment search. Individuals in Virginia, however, are protected not only by the Fourth Amendment but also under state law. And Section 19.2-59 of the Code of Virginia contains a ban on searches without a warrant, subject only to exceptions in the enforcement of game and marine fisheries laws—rather, that is what Section 19.2-59 seems to say it contains. In practice, the Supreme Court of Virginia has for decades interpreted the statute to provide the same protections as the Fourth Amendment, despite the stark differences between the two texts.

This Note’s first contribution is to explore that discrepancy. It documents how Section 19.2-59 was first passed during the Prohibition Era as part of a backlash to overly intrusive searches by law enforcement agents. It reveals that the Supreme Court of Virginia was originally willing to credit the statute’s plain meaning and interpret it as offering broader protections against unreasonable searches than the common law. In the middle of the twentieth century, however, the court began to misread those early cases, leading to the current understanding of the law that is divorced from its plain meaning. The history of Section 19.2-59 thus raises difficult questions of statutory interpretation. This Note’s second contribution is to identify those questions and begin articulating what the contemporary meaning of Section 19.2-59 should be.

Introduction

“Because we can only administer the law as it is written, the interpretative principle that precedes all others is that ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says . . .’.”1 1.Appalachian Power Co. v. State Corp. Comm’n, 876 S.E.2d 349, 358 (Va. 2022) (internal quotation marks omitted) (first quoting Coalter v. Bargamin, 37 S.E. 779, 781 (Va. 1901); and then quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)).Show More

Kenneth Wilson was pulled over as he drove through Chesterfield County, Virginia, on the evening of March 29, 2019.2 2.Wilson v. Painter, No. 3:20cv645, 2020 WL 7497801, at *1 (E.D. Va. Dec. 21, 2020).Show More The officer who commenced the stop did not initially give any reason for doing so. But after running Wilson’s license and registration, he ordered Wilson to step out of his car.3 3.Id. at *2.Show More Wilson responded by asking why he had been pulled over. The officer told Wilson that his headlight was out and opened the driver-side door. Wilson remained seated. The officer quickly repeated the order three more times, but Wilson did not budge. Then, without warning, the officer punched Wilson in the face and yanked him out of the car.4 4.Id.Show More

Once Wilson was restrained, the officer informed him that he had ordered Wilson to exit the vehicle due to the smell of marijuana.5 5.Id.Show More Wilson was patted down and escorted away. The officer then searched his car and found marijuana. In subsequent criminal proceedings, the Chesterfield County General District Court ordered that the drugs be suppressed.6 6.Id.Show More

Wilson sued the officer under both federal and state law seeking half a million dollars in compensatory and punitive damages. In considering the officer’s motion to dismiss, the U.S. District Court for the Eastern District of Virginia noted that one of the state law claims was for “unlawful search in violation of Virginia Code § 19.2-59.”7 7.Id.Show More The court did not take long to resolve the claim, simply noting that it “rel[ies] on the absence of probable cause” and citing to a 1968 Supreme Court of Virginia case in support of the proposition.8 8.Id. at *8 (citing Carter v. Commonwealth, 163 S.E.2d 589, 592 (Va. 1968)).Show More In Wilson’s case, the court reasoned, the smell of marijuana gave the officer probable cause that there was contraband in the vehicle. The Section 19.2-59 claim was accordingly dismissed.9 9.Id. at *8–9. Wilson did not challenge the court’s dismissal of the § 19.2-59 claim on appeal. Wilson v. Painter, No. 21-1083, 2021 WL 5851070, at *1 n.1 (4th Cir. Dec. 9, 2021) (per curiam).Show More

At first glance, the decision appears unremarkable. Yet it is notable for what the court did not do: consider the text of Section 19.2-59 of the Code of Virginia. If it had, the court would have needed to concede that the provision says nothing about probable cause. Instead, Section 19.2-59 seems to plainly prohibit the type of warrantless search that Wilson’s car was subject to. The statute starts with a simple command:

No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer.10 10.Va. Code Ann. § 19.2-59 (2022). The rest of the statute reads:Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.Id.Show More

That general prohibition is subject to an exception allowing for the warrantless searches of vehicles—but only when such searches are carried out in the enforcement of Virginia’s game or marine fisheries laws.11 11.Id.Show More The limited exception seems to further Wilson’s case, giving rise to a negative inference that warrantless automobile searches in all other contexts are prohibited.12 12.See Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 790 S.E.2d 484, 487 (Va. 2016) (“In interpreting statutory language, we have consistently applied the time-honored principle expressiouniusestexclusioalterius . . . . Under this maxim, when a legislative enactment limits the manner in which something may be done, the enactment also evinces the intent that it shall not be done another way.” (internal quotation marks and citations omitted)).Show More

The perfunctory treatment Section 19.2-59 received in Kenneth Wilson’s case is not unusual. In fact, Section 19.2-59 and its seemingly near-total ban on warrantless searches have gone almost entirely overlooked both in practice and in the literature. In practice, the statute is interpreted to offer the same protections as the Fourth Amendment,13 13.The Fourth Amendment to the U.S. Constitution reads:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV.Show More despite the fact that the Amendment allows for a large portion of law enforcement searches to occur without a warrant.14 14.See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.1(b) (6th ed. 2020) (providing an overview of the instances in which police are permitted to conduct a search without a warrant under the Fourth Amendment, including the exigent circumstances exception, the automobile exception, consent searches, inventory searches, and searches incident to arrest); Ronald Jay Allen, Joseph L. Hoffmann, Debra A. Livingston, Andrew D. Leipold & Tracey L. Meares, Criminal Procedure: Investigation and Right to Counsel 435, 467 (4th ed. 2020) (“Taken individually, these exceptions may seem narrow enough. Cumulatively, the exceptions may be the rule—and warrants the real exception.”).Show More Section 19.2-59 is also understood to create a cause of action against law enforcement officers akin to that found in 42 U.S.C. § 1983.15 15.See infra Subsection I.B.2.Show More In the literature, the statute’s origins, development, and interpretation by courts have never been explored.16 16.A review of the secondary sources citing § 19.2-59 on Westlaw and Lexis+ reveals a smattering of treatises and journal articles that mention the statute. That literature has given only cursory consideration to the law. See, e.g., Robert S. Claiborne, Jr., Comment, Commonwealth and Constitution, 48 U. Rich. L. Rev. 415, 423, 423 n.38 (2013) (calling it “troubling” that § 19.2-59 “does not plainly impose the same Fourth Amendment requirements, but Virginia courts have construed [it] to do so”); John L. Costello, Virginia Criminal Law and Procedure § 35.6 (4th ed. 2008) (“This statute was enacted in response to public outcry during the Prohibition Era and has been consistently held to be coextensive with the Fourth Amendment . . . .”).Show More

This Note seeks to change that. Part I summarizes the current state of the law on illegal searches in Virginia under the Fourth Amendment, Section 10 of the Virginia Declaration of Rights,17 17.Section 10 of the Virginia Declaration of Rights is the search-and-seizure provision in the Virginia Constitution. It reads:That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.Va. Const. art. I, § 10.Show More and Section 19.2-59. Part II explores the history of Section 19.2-59.18 18.Although § 19.2-59 did not obtain its current place in the Code of Virginia until 1975, see Act of Mar. 22, 1975, ch. 495, 1975 Va. Acts 846, 856–57, this Note refers to earlier versions of the provision as “Section 19.2-59” for clarity.Show More It reveals the statute was originally enacted in 1920 as part of a larger bill meant to rein in the searches of state prohibition officers. Although the statute has been amended several times since, much of its substance remains the same as it was in 1920. Part III first analyzes how the Supreme Court of Virginia19 19.The modern-day Supreme Court of Virginia was known as the “Supreme Court of Appeals” until 1970. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 704 (1974). For clarity, this Note refers to the court by its current name when referencing decisions of the pre-1970 court.Show More interpreted Section 19.2-59 in the years immediately following its enactment. It then documents how, in the latter half of the century, the court misread those earlier cases, leading to the current application of the statute that departs not only from its text, but also from how it was originally understood by courts. Finally, Part IV makes a preliminary attempt at answering several questions raised by the analysis in Parts II and III.

  1. Appalachian Power Co. v. State Corp. Comm’n, 876 S.E.2d 349, 358 (Va. 2022) (internal quotation marks omitted) (first quoting Coalter v. Bargamin, 37 S.E. 779, 781 (Va. 1901); and then quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)). ↑
  2. Wilson v. Painter, No. 3:20cv645, 2020 WL 7497801, at *1 (E.D. Va. Dec. 21, 2020). ↑
  3. Id. at *2. ↑
  4. Id. ↑
  5. Id. ↑
  6. Id. ↑
  7. Id. ↑
  8. Id. at *8 (citing Carter v. Commonwealth, 163 S.E.2d 589, 592 (Va. 1968)). ↑
  9. Id. at *8–9. Wilson did not challenge the court’s dismissal of the § 19.2-59 claim on appeal. Wilson v. Painter, No. 21-1083, 2021 WL 5851070, at *1 n.1 (4th Cir. Dec. 9, 2021) (per curiam). ↑
  10. Va. Code Ann. § 19.2-59 (2022). The rest of the statute reads:Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.

    Id. ↑

  11. Id. ↑
  12. See Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 790 S.E.2d 484, 487 (Va. 2016) (“In interpreting statutory language, we have consistently applied the time-honored principle expressio unius est exclusio alterius . . . . Under this maxim, when a legislative enactment limits the manner in which something may be done, the enactment also evinces the intent that it shall not be done another way.” (internal quotation marks and citations omitted)). ↑
  13. The Fourth Amendment to the U.S. Constitution reads:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV. ↑
  14. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.1(b) (6th ed. 2020) (providing an overview of the instances in which police are permitted to conduct a search without a warrant under the Fourth Amendment, including the exigent circumstances exception, the automobile exception, consent searches, inventory searches, and searches incident to arrest); Ronald Jay Allen, Joseph L. Hoffmann, Debra A. Livingston, Andrew D. Leipold & Tracey L. Meares, Criminal Procedure: Investigation and Right to Counsel 435, 467 (4th ed. 2020) (“Taken individually, these exceptions may seem narrow enough. Cumulatively, the exceptions may be the rule—and warrants the real exception.”). ↑
  15. See infra Subsection I.B.2. ↑
  16.  A review of the secondary sources citing § 19.2-59 on Westlaw and Lexis+ reveals a smattering of treatises and journal articles that mention the statute. That literature has given only cursory consideration to the law. See, e.g., Robert S. Claiborne, Jr., Comment, Commonwealth and Constitution, 48 U. Rich. L. Rev. 415, 423, 423 n.38 (2013) (calling it “troubling” that § 19.2-59 “does not plainly impose the same Fourth Amendment requirements, but Virginia courts have construed [it] to do so”); John L. Costello, Virginia Criminal Law and Procedure § 35.6 (4th ed. 2008) (“This statute was enacted in response to public outcry during the Prohibition Era and has been consistently held to be coextensive with the Fourth Amendment . . . .”). ↑
  17. Section 10 of the Virginia Declaration of Rights is the search-and-seizure provision in the Virginia Constitution. It reads:That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.Va. Const. art. I, § 10. ↑
  18. Although § 19.2-59 did not obtain its current place in the Code of Virginia until 1975, see Act of Mar. 22, 1975, ch. 495, 1975 Va. Acts 846, 856–57, this Note refers to earlier versions of the provision as “Section 19.2-59” for clarity. ↑

  19. The modern-day Supreme Court of Virginia was known as the “Supreme Court of Appeals” until 1970. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 704 (1974). For clarity, this Note refers to the court by its current name when referencing decisions of the pre-1970 court. ↑

Some Notes on Courts and Courtesy

This Essay is a short reflection on misgendering by judges, told through a critical assessment of three cases from the Fifth and Eighth Circuits: Gibson v. Collier, United States v. Varner, and United States v. Thomason. In the trio, judges refused to refer to trans and nonbinary parties with the appropriate titles, honorifics, and pronouns, and offered eight rationalizations to defend their doing so.

The primary task of this Essay is to entertain the justifications. It finds they come up wanting. The arguments misconstrue precedent, or are incoherent, incomplete, or just plainly unpersuasive.

Against these inadequate defenses, the Essay’s second task is to offer one case against judicial misgendering. The argument focuses on the significance and institutionally protective nature of courtesy from members of the bench, which Gibson, Varner, and Thomason either overlooked or too hastily dismissed. Judicial courtesy serves to maintain the judiciary’s legitimacy, moral authority, and reputation—all essential to generate citizen confidence and compliance, and thus all necessary for the judiciary’s basic institutional function. Given these critical interests, the Essay concludes that courtesy calls judges to refer to parties with the appropriate pronouns, honorifics, and names.

Introduction

From the moment it was published, the Bostock v. Clayton County1 1.140 S.Ct. 1731 (2020) (holding that Title VII’s prohibition against sex discrimination in employment applies to gay and transgender individuals).Show More decision became a cause célèbre. Generating a cottage industry of commentary, thus far the case has been picked apart and scrutinized from a variety of angles. Most readily, commentators have taken on the author and method. Others have looked ahead, exploring what the decision portends.2 2.E.g., Rachel Slepoi, Bostock’s Inclusive Queer Frame, 107 Va. L. Rev. Online 67, 67-68, 82 (2020) (explaining the case’s inclusive account of sex-based discrimination, and underscoring the import for trans discrimination case law moving forward); Guha Krishnamurthi & Peter Salib, Bostock and Conceptual Causation, Yale J. Reg. Notice & Comment (July 22, 2020), https://www.yalejreg.com/nc/bostock-and-conceptual-causation-by-guha-krishnamurthi-peter-salib/ [https://perma.cc/WU2G-QZZV](using the case as a case study to tease out issues of multifactorial causation in antidiscrimination jurisprudence).Show More At the same time, naturally, Bostock has been both celebrated and reviled for becoming the first Supreme Court case directly considering and impacting the transgender community, all while adding another link in the ever-growing chain of Court victories for lesbians and gay men.3 3.Compare Adam Liptak, Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules, N.Y. Times (June 15, 2020), https://www.nytimes.com/2020/‌06/15/us/gay-transgender-workers-supreme-court.html [https://perma.cc/9NFA-URBN] (summarizing celebration of the holding),withHadley Arkes, A Morally Empty Jurisprudence, First Things (June 17, 2020), https://www.firstthings.com/web-exclusives/‌2020/06/a-morally-empty-jurisprudence [https://perma.cc/BH3Q-ZUEP] (calling the case “the Roe v. Wade for transgenderism [sic], with effects that will ripple out widely in our country, touching and disfiguring our private lives.”).Show More

Still, while Bostock’s substance—what the opinion means and does—has attracted and will continue to attract scholarly attention, Bostock’s equally noteworthy style—how the opinion says what it does—has not. Amidst the litany of commentary, fanfare, and criticism, an aesthetic aspect of the decision has largely4 4.Unsurprisingly, trans-antagonistic commentators have, however, been more wont to notice this. E.g.,Ed Whelan, Bostock Majority: A ‘Trans Woman’ Is Not a Woman, Nat’l Rev. (June 18, 2020), https://www.nationalreview.com/bench-memos/bostock-majority-a-trans-woman-is-not-a-woman/ (lamenting the Court’s “parrot[ing] . . . the rhetoric of transgender ideology” and calling the opinion’s reasoning “deeply unsound.”).Show More gone overlooked: The majority’s use of she/her pronouns when referencing Aimee Stephens.

This is not a trivial nicety. It represents the first time that a Supreme Court majority has used gender-appropriate language when discussing an openly transgender litigant. Until now, the Court has cautiously relied on gender-neutral language, choosing to address trans parties as “petitioner” “respondent,” or by last name sans gendered titles.5 5.E.g., Burt v. Titlow, 571 U.S. 12 (2013) (using the gender neutral “respondent” throughout); Farmer v. Brennan, 511 U.S. 825 (1994) (using the gender neutral “petitioner” throughout).Show More Bostock’s stark stylistic sea-change thus prompts some obvious questions. What, if any, is the significance of the Court’s choice to use gender-appropriate language when referring to Stephens? And, more generally speaking, how should courts reference and address trans parties in their writing moving forward?

Unfortunately, Bostock did not provide much by way of answers. But this Essay will fashion some. It does so primarily by reviewing three circuit court decisions, Gibson v. Collier,6 6.920 F.3d 212 (5th Cir. 2019).Show More United States v. Varner,7 7.948 F.3d 250 (5th Cir. 2020).Show More and United States v. Thomason.8 8.991 F.3d 910 (8th Cir. 2021).Show More In the three, panels deliberately misgendered the appellants, Vanessa Lynn Gibson, Katherine Nicole Jett, and Shawn Kelly Thomason, respectively. Said differently, where Bostock was courteous, Gibson, Varner, and Thomason decidedly were not. Juxtaposing the opinions’ approaches, therefore, provides an ideal platform to judge the cases both in favor and against courts addressing gender diverse parties with gender-appropriate language. Ultimately, the Essay concludes that Bostock’s approach—which is to say, deferring to the way litigants refer to themselves—is best.

I reach that verdict in roughly two steps. Part II examines the cases made by the trio of opinions in defense of their misgendering. It will show that none of the justifications offered are particularly persuasive and, as it turns out, many are simply unsound. Even so, of the many reasons offered, one is more troubling than the rest. Varner rejected the use of gender-appropriate language as “purely . . . a courtesy to parties.”9 9.948 F.3d at 255.Show More That statement casts judicial showings of courtesy as unimportant and dismissible, in addition to inviting reflection on the troubling prospect that respect, etiquette, and even mere kindness should not factor into the analysis of whether courts should misgender trans parties in their opinions.

Part III takes the bait. Using Varner’s last rationale as a provocative, Section III.A argues such a trivializing account is incorrect. It makes the case for judicial courtesy towards trans litigants by zeroing in on the institutional importance of courtesy. The resulting picture is that, far from inconsequential, judicial courtesy shores up the courts’ legitimacy, moral authority, and the esteem in which it is held, along with serving several practical benefits.

Section III.B closes the Essay by considering and refuting a probable antagonism to my argument: That misgendering in judicial opinions is an acknowledgement of an “objective truth,” such that, even if there was in fact a duty of courtesy to litigants, it would not require judges to employ gender-appropriate language in their writing.

I. Of Courts: Recent Arguments for Misgendering in Judicial Writing

This Part spells out the problems with defenses for misgendering in judicial writing, as offered by three recent cases. The cases warrant focus for a few reasons. One is that they are some of the most recent Circuit court decisions to misclassify the gender of a trans litigant. From the time of the first holding, the overwhelming majority of Circuit panels have employed gender appropriate language.10 10.United States v. Pinson, 835 F. App’x. 390 (10th Cir. 2020) (adopting gender appropriate language for trans litigant); accordUnited States v. Rivera, 824 F. App’x. 930 (11th Cir. 2020); accord Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020); accordJackson v. Kuepper, 813 F. App’x. 230 (7th Cir. 2020); Gomez-Ortega v. Barr, 804 F. App’x. 738 (9th Cir. 2020); accordArrivillaga v. Att’y Gen. United States, 811 F. App’x. 756 (3d Cir. 2020).Show More

Another reason is the extent of the misgendering. Thomason is addressed by male pronouns twenty-six times and Gibson is referred to as male some forty-six times. Far more egregiously, over the course of eleven pages, the Varner majority refers to Jett with he/him pronouns and her birth name a collective sixty-six times. Varner also goes as far as to alter any quotations that address her appropriately.

The most significant reason by far, however, is that the cases unabashedly defend their gender misclassifications. Conventionally, courts choosing to misgender trans persons provide little by way of explanation. Gibson, Varner, and Thomason, however, are anything but reticent. Between the three, the cases offered eight justifications for misaddressing the litigants.11 11.Before evaluating the justifications, a short caveat is probably in order. In engaging with the arguments, I will set aside the authoring judges’ alleged histories of anti-LGBT positions and even overt transphobia. See, e.g., 39 LGBT Groups Oppose Confirmation of Stuart Kyle Duncan, Lambda Legal (Jan. 17, 2018), https://www.lambdalegal.org/in-court/legal-docs/dc_20180117_opposition-of-stuart-kyle-duncan [https://perma.cc/S9QD-XAD4]; Lambda Legal Letter of Concern About the Nomination of James Ho, Lambda Legal (Dec. 6, 2017), https://www.lambdalegal.org/in-court/legal-docs/dc_20171206_letter-of-concern-about-james-ho [https://perma.cc/KRW3-NSMK]; Lisa Keen, A Look at the LGBT Records of Trump’s Potential Court Picks, Bay Area Reporter (May 25, 2016), https://www.ebar.com/news///246311 [https://perma.cc/B792-RTMZ].I will assume that, while reviewing the cases before them, the judges set those histories aside as well.Show More

A. Gibson v. Collier’s Arguments

In Gibson, the Fifth Circuit considered whether refusing Vanessa Lynn Gibson, a transgender prisoner with severe gender dysphoria, gender-confirmation surgery violated the Eighth Amendment.12 12.920 F.3d at 217.Show More The panel concluded it did not. In the course of doing so, the court defended misgendering Ms. Gibson in three ways. The opinion: (1) cited Texas Department of Criminal Justice policy (TDCJ), emphasizing that Gibson was placed in a male penal facility; (2) cited Frontiero v. Richardson for the proposition that sex “is an immutable characteristic determined solely by . . . birth,”13 13.Id. (citingFrontiero v. Richardson, 411 U.S. 677, 686 (1973)).Show More implying pronouns are strictly genitally-referent; and (3) cited Supreme Court and Fifth Circuit case law allegedly misgendering trans litigants. Can any of these reasons adequately justify misgendering Gibson? In a word, no.

Justification (1) rests on courts’ traditional deference to penal institutions, while ignoring whether the rationales for doing so were applicable. Ordinarily, courts defer to penal policies on the logic that institutions, rather than judges, are better equipped to determine how best to advance penological interests in security and rehabilitation. Here, however, neither interest applies. It is difficult to imagine how a court using gender-appropriate language for a trans litigant alters the safety of prisons and, if anything, more respectful conduct by actors in the criminal legal system would increase the chances of rehabilitation.14 14.See Konitzer v. Frank, 711 F. Supp. 2d., 874, 912 (E.D.Wis. 2010) (finding referring to an inmate by her correct pronouns “does not appear to impinge on any . . . security issues.”).Show More The failure to advance either penal interest renders the first justification deficient.

Justification (2) similarly misses the mark. Whether sex is immutable is wholly irrelevant.15 15.Recent Case:Gibson v. Collier, Harv. L. Rev. Blog (Apr. 12, 2019), https://blog.harvardlawreview.org/recent-case-_gibson-v-collier_/ [https://perma.cc/W37M-JEAA] (noting that the opinion “cit[ed] Frontiero out of context”).Show More For the majority of modern history, pronoun use has been unhinged from persons’ genital characteristics. Think, for example, of the centuries of male-generics, applied to women. Even at present, pronouns are most typically used based on perception-related assumptions; that is, perceived sex.16 16.See Chan Tov McNamarah, Misgendering as Misconduct, 68 UCLA L. Rev. Disc. 40, 52 (2020).Show More Said differently, we use language depending on what we see in others, rather than confirming facts about their bodies. This is why, for instance, we might use the incorrect forms of address for a short-haired woman, or on the phone with a man with a higher-pitched voice. So, based on how language is used in the real world, an argument based on persons’ physical features cannot work.

Concurrently, the reliance on case law for support on a technical matter, is a move as misguided as it is dangerous. Judges are not scientists, and the science on sex in general and trans persons specifically has drastically evolved since 1973, when Frontiero was decided. It cannot be reasonable to justify present conduct based on outdated science.

Justification (3) fails as well. The rationalization relies on citations to case law purportedly misgendering trans parties. To what end? The implication is that, in some way, these cited cases countenance Gibson’s own misgendering. Arguably, the opinion would not have offered support unless it was meant to lend credence or cover to its own conduct.

Here’s the rub. Contra Gibson’s account, the Farmer v. Brennan majority opinion, which Gibson cites as “using male pronouns for transgender prisoner born male,”17 17.Gibson, 920 F.3d at 217 n.2.Show More never actually does that. Throughout, the Farmer majority meticulously used the gender-neutral “petitioner” in all references to Dee Farmer.18 18.SeeBrief for the Petitioner, R.G. & G.R. Harris Funeral Homes, No. 18-107, 8 (U.S. Aug. 16, 2019) (“Out of respect for Stephens and following this Court’s lead in Farmer v. Brennan [citation omitted], Harris tries to avoid use of pronouns and sex-specific terms when referring to Stephens.”); Amicus Brief of Free Speech Advocates in Support of Petitioner at 2, R.G. & G.R. Harris Funeral Homes, No. 18-107, 2 (U.S. Aug. 22, 2019) (“In Farmer v. Brennan, a case involving a ‘transsexual’ prisoner ‘who is biologically male,’ this Court’s eight-Justice majority opinion, authored by Justice Souter, scrupulously (and presumably intentionally) avoided all pronouns in referring to the prisoner (except when directly quoting other sources) [citations omitted].”).Show More Tellingly, as well, at oral argument, the Justices referred to Ms. Farmer with the appropriate female language.19 19.See Ezra Ishmael Young, What the Supreme Court Could Have Heard inR.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens, 11 Cal. L. Rev. Online 9, 33-34 (2020) (analyzing oral argument transcript).Show More Stated bluntly, at best, Gibson misreads the case it cites as support and, at worse, Gibson disfigures it.

B. United States v. Varner’s Arguments

In Varner the Fifth Circuit considered Kathrine Nicole Jett’s appeal from a district court’s denial of a motion to change the name on an earlier judgement.20 20.948 F.3d at 252 (5th Cir. 2020).Show More The panel vacated the denial for lack of jurisdiction. Then, in a seven-page soliloquy, the Court provided ample reasons why it rejected Jett’s simultaneous motion to “use female pronouns when addressing [her].”21 21.Id.at 253.Show More

The court defended the refusal on three grounds. That: (4) using gender-appropriate language would give the impression of wrongful partiality towards Jett; (5) that allowing Jett’s motion would open a slippery-slope whereby courts would be forced to use uncommon neo-pronouns (i.e., pronouns like ze, xe, etc.); and (6) that no authority exists persuading the court to use gender-appropriate language.

Perhaps there are some closer-to-satisfactory arguments for why an opinion contains misgendering language, but Varner didn’t offer any.22 22.To be clear, I think that an opinion using misgendering language differs from one mentioning or quoting it. See Paul Saka, Quotation and the Use-Mention Distinction, 107 Mind 113 (1998). To see the difference, imagine a discrimination case where the court is quoting misgendering language as proof of bias or prejudice. I could be convinced that there might be good reason to quote exactly what was said to aid the reader fully grasp the nature of the discriminatory context, at least with an inserted “sic.” SeeMcNamarah, supranote 16, at 60–61 (using that convention).Alternatively, the court could use the parenthetical “misgendering in original” after the citation, to distance itself from the language. See, e.g., Lihi Yona & Ido Katri, The Limits of Transgender Incarceration Reform, 31 Yale J.L. & Feminism 201, 212 n.39 (2020) (using that convention).Show More Justification (4), the warning that a court respecting the gender of a trans litigant implies improper bias is vastly exaggerated, if not just illogical. Many courts have respected trans parties, while ruling against them, or explicitly indicating that the language used had no bearing on the case. Varner, though, apparently fails to consider that possibility. What’s more, accepting the reasoning, the proper course to maintain judicial neutrality would appear to be employing gender-neutral language, rather than misgendering the trans party.23 23.Even that approach, though, would be problematic unless the court used gender-neutral references for all parties, rather than singling out gender diverse ones.Show More Strangely enough, the opinion conspicuously sidestepped that conclusion.

Next comes justification (5), a slippery-slope excuse. The contention is that, by respecting Jett’s binary gender pronouns, the court will have to respect less-common ones (i.e., gender neutral pronouns like they/them, or neopronouns like zhir/zhem etc.) in the future. Nothing compels that conclusion.24 24.The slope needn’t be slippery. For the sake of argument: A court could plausibly differentiate binary and gender-neutral pronouns from neopronouns on the argument that the former are widely used, while the latter are not. Put as such, neopronouns require the speaker or author to learn a completely new set of pronouns; binary and gender-neutral pronouns do not.Show More However, insofar as we credit the justification, Varner doesn’t even attempt to provide a convincing explanation why doing so would be undesirable. Surely, particularly during the present polarized times, most would agree that more respectful conduct by courts—and wider society—should be welcomed, rather than derided.

Even setting that issue aside, there is another. Much of the argument’s persuasiveness hinges on an empirically unsubstantiated prediction: Scores of non-binary litigants, using neopronouns, entering the legal system and requiring judges to learn and employ a litany of new pronouns. Yet, most studies suggest gender expansive persons account for less than 1 percent of the adult population25 25.SeeAndrew R. Flores et al., How Many Adults Identify as Transgender in the United States? 2 (Jun. 2016) (concluding transfolk account for 0.6% of the adult population).Show More and, of these, only 4-6 percent of trans individuals use neopronouns.26 26.See Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey 49-50 (2016) (finding only 29% of the 27,700+ trans respondents used they/them/their pronouns, 2% used ze/hir pronouns, and a mere 4% used neopronouns).Show More Thus, the chances of a judge actually overseeing a case that includes a trans litigant who uses neopronouns are borderline nonexistent. Quite tellingly, there are almost as many judicial opinions decrying the use of neo and gender-neutral pronouns, as there are cases with trans litigants actually requesting courts use them.27 27.Compare Bostock v. Clayton County at 1782 (Alito, J., dissenting), andVarner, 948 F.3d 257, with SAI v. Transp. Sec. Admin., 315 F. Supp. 3d 218, 249 (D.D.C. 2018) (using the gender neutral they/them) andDoe v. Fedcap Rehab. Servs., 2018 U.S. Dist. LEXIS 71174 at *1 (S.D.N.Y. 2018) (same), andHenderson v. Minnesota, 2019 U.S. Dist. LEXIS 228230 at *2 n.2 (D. Minn. 2019).Show More

Last, to justification (6). The account claims that “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.”28 28.Varner, 948 F.3d 250, 254–55 (5th Cir. 2020).Show More Going further, the court stated that “sometimes” federal courts have used gender-appropriate language, but the ones who have “have done so purely as a courtesy to parties. . . . None has adopted the practice as a matter of binding precedent, and none has purported to obligate litigants or others to follow the practice.”29 29.Id.at 255 (emphasis added).Show More

The justification is wrong thrice over. First, in direct contrast to the claim that no authority supports prohibiting misgendering, the Model Code of Judicial Conduct and the Code of Conduct for United States Judges both obligate judges to require respectful and courteous conduct from litigants, lawyers, and court staff.30 30.See Code of Conduct for United States Judges Canon 3(A)(3) (2019); Model Code Of Judicial Conduct Canon 2 r. 2.8(B) (Am. Bar Ass’n 2020).Show More Given that misgendering is, in fact, incredibly disrespectful and discourteous, it would seem the regulations apply. Second, the statement that no courts have obligated persons to use gender appropriate language or avoid misgendering is misrepresentative. Courts have done just that.31 31.E.g., Lynch v. Lewis, 2014 U.S. Dist. LEXIS 63111, at *4 n.3 (M.D. Ga. Mar. 24, 2014) (granting in part a trans plaintiff’s “Motion for Feminine Form of Address and Use of Female Pronouns” requiring defense use female pronouns in court and filings); Qz’Etax v. Ortiz, 170 Fed. App’x. 551, 553 (10th Cir. 2006) (upholding pro se trans appellant’s “motion for the continued usage of proper female pronouns”).Show More Third, the remark that “federal courts sometimes choose to refer to” trans parties with gender-appropriate language can be interpreted in at least one of two ways. “Sometimes,” suggests either that (i) the actual number of opinions using gender-appropriate/misgendering language is immeasurable; or (ii) only a minority of courts respect trans parties by using gender-appropriate language.

I’ve done the math. Both suggestions are misleading. Reviewing all cases involving transgender parties and discussions of pronouns from 1979 to 2018, yields a total of 335 cases.32 32.See Chan Tov McNamarah, Language Use in Cases Involving Trans Parties, 1979–2018, (unpublished manuscript on file).Show More From there, considering the language used when referring to the trans party, whether appropriate (i.e., uses titles and pronouns in-line with their current sex), misgendering (i.e., uses titles and pronouns at odds with their current sex), inconsistent (i.e., uses language both in-line and at odds with parties’ current sex) finds the overwhelming majority of courts defer to the gendered language of the trans party: Of the 335 cases, 282 or 84.17 percent use gender appropriate language. 33 33.The other results: 39 misgender trans parties (11.64%), 5 use inconsistent language (1.49%), and in 9 references the parties’ gender—and thus pronouns—are unclear (2.68%). Id.Show More Only some 8.5 percent misgender trans litigants. Thus, Varner’s final attempted defense also fails on the facts.

C. United States v. Thomason’s Arguments

In Thomason, the Eighth Circuit considered Shawn Kelly Thomason’s appeal from a sentence of a three-year term of supervised release.34 34.Thomason, 2021 U.S. App. LEXIS 7552 (8th Cir. Mar. 16, 2021).Show More Among their five other arguments, Thomason alleged prosecutorial misconduct based on the prosecutor’s use of masculine pronouns and labels (e.g., “gunman” and “boyfriend”) at trial.35 35.Id.at *5.Show More The Eighth Circuit rejected Thomason’s appeal, and while doing so, misgendered them on two bases: (7) to be “consistent with the proceedings in the district court”; and (8) for the sake of “clarity.”36 36.Id. at *6.Show More

Neither of these arguments holds water. Justification (7) appeals to consistency, the idea being that, once a lower court addresses a litigant in one way, appellate courts are bound to do the same. When pressed, the reasoning doesn’t work. Accepting that appellate courts are bound by factual determinations from below, the argument collapses because the lower court did not make—nor purport to make—a determination of Thomason’s sex. Further, insofar as the justification’s underpinning concern is that readers need to consistently identify Thomason over the course of multiple opinions, a note stating that in previous litigation the litigant was referred to by male pronouns but that the present opinion uses the gender-neutral pronouns, suffices.37 37.The rationale also ignores the number of appellate courts that have used gender-appropriate language, despite district courts in earlier proceedings misgendering litigants. Compare, e.g., Farmer v. Moritsugu, 742 F. Supp. 525, 526 (W.D. Wisc. 1990) (misgendering Dee Farmer), withFarmer v. Haas, 990 F.2d 319, 320 (7th Cir. 1993) (“Farmer prefers the female pronoun and we shall respect her preference”).Show More

Clarity does not convince either. To support justification (8), the opinion charged “[a]s the filings in this case illustrate, clarity suffers and confusion may follow when legal writing refers to a single individual as ‘they,’ especially when the materials advert to other actors who are naturally described as ‘they’ or ‘them’ in the traditional plural.”38 38.Thomason, 2021 U.S. App. LEXIS 7552at *6.Show More

The final defense overestimates any potential confusion and doubly underestimates readers. As a matter of fact, the gender-neutral “they” is quite widely used and understood.39 39.Cf. generallyDarren K. LaScotte, Singular They: An Empirical Study of Generic Pronoun Use, 91 Am. Speech 62 (2016); Evan D. Bradley, The Influence of Linguistic and Social Attitudes on Grammaticality Judgments of Singular ‘They,’ 78 Lang. Sci. 1, 1 (2020); Laura Louise Paterson, Epicene Pronouns in UK National Newspapers: A Diachronic Study, 35 ICAME J. 171 (2011).Show More And, to concerns about confusion, the countless opinions using they/them pronouns for non-binary parties or for parties whose gender is unknown, forcefully demonstrate that skillful drafting provides countless ways to minimize uncertainty.40 40.Chanticleer Holdings Inc., 2020 NLRB LEXIS 72, at *8 (Nat’l Lab. Rels. Bd. Feb. 19, 2020).Show More The opinion could easily use names instead of third-person language, or again, explicitly alert readers that the litigant uses gender-neutral pronouns. Seen as such, Thomason’s last defense also succumbs to reason.

* * *

Tallied up, the justifications offered by Gibson, Varner, and Thomason don’t appear to succeed.

II. Of Courtesy: One Case Against Misgendering in Judicial Writing

As we know, in Bostock the Supreme Court considered whether it violated Title VII for an employer to terminate a worker for being gay or transgender. And, as we know, the Court found it did. While doing so, the Court referred to one plaintiff, Aimee Stephens, with the appropriate pronouns and honorific.

At least three characteristics call us to view this choice as meaningful. First, as previously mentioned, the Court has never before used the appropriate language in a majority opinion. Second is the deliberateness inherent in writing; in judicial writing especially, very little is left to chance. Third, and perhaps most tellingly, several amici flagged the issue of gender-appropriate language prior to the holding. Trans-antagonistic briefs went as far as to counsel the Court to misgender Ms. Stephens, or else “un-gender”41 41.“To ‘ungender’ . . . involves the asymmetrical use of gendered titles, terms, or pronouns for cisgender people but not for gender-diverse ones. It may also involve the deliberate use of gender-neutral language where the referent explicitly” makes their gender known. Chan Tov McNamarah, Misgendering, 109 Cal. L. Rev. 101, 127 (2021).Ungendering is discriminatory because it involves disparate withholding of acknowledgement and respect from gender minorities, while offering it to cisgender persons—akin to historical examples of the refusal to use honorifics when addressing or referring to Black persons, or professional titles for women, while offering them to white persons and men, respectively. Id. at 128.Show More her by referring to her with no pronouns or titles at all.42 42.SeeBrief of Free Speech Advocates in Support of Petitioner at 2, R.G. & G.R. Harris Funeral Homes v. Equal Emp. Opportunity Comm’n, No. 18-107 (U.S. Aug. 22, 2019) (stating the “Court should either follow the Farmer model and simply refer to ‘Stephens’ or ‘respondent,’ or else . . . employ pronouns as they have been used since the dawn of language, namely, to refer to the biological sex of a person.”).Centuries of male generics used in reference for women or mixed-sex groups render the latter half of the brief’s reasoning historically inaccurate.Show More That the Court chose to ignore such counsel, again, suggests using the appropriate language in references to Ms. Stephens cannot be cast aside as a mistake or oversight.

But Bostock otherwise leaves us wanting for an explanation. In other words: What, precisely, justifies the Court’s choice to use gender-appropriate language? This Part presents one possibility, relying on the principles of courtesy Varner cavalierly cast aside, and Gibson and Thomason failed to consider altogether.

A. The Institutionally Protective Qualities of Judicial Courtesy

Most would agree that courteous conduct is important. At surface level, courtesy helps everyday life and interpersonal interactions go smoothly. At a deeper level, courtesy promotes social order and peace,43 43.Susan Burgess, Outing Courtesy: The Role of Rude Dissent in Rule of Law Systems, 38 L. & Soc. Inquiry 206, 207 (2013) (writing courtesy “facilitates interpersonal exchange and fosters social peace despite small or even great differences that arise in the course of everyday life.”); David McPherson, Manners and the Moral Life, inThe Theory and Practice of Virtue Education (2018) (arguing courtesy helps “social life to go well”).Show More and courtesy is a means of expressing our moral commitments to respect the equality and dignity of our fellow persons.44 44.Sarah Buss, Appearing Respectful: The Moral Significance of Manners, 109 Ethics 795, 796–97 (1999).Show More By some accounts, courtesy even aids in the preservation of democracy. On Justice Gorsuch’s telling, a functional democracy “turns on our treating each other as equals—as persons, with the courtesy and respect each person deserves—even when we vigorously disagree.”45 45.Neil M. Gorsuch, A Republic, If You Can Keep It 31 (2019).Show More

Courtesy is crucial at an institutional level as well. The modern civility movement has forcefully made the case that attorney courtesy and professionalism serve to preserve and enhance the legal system’s reputation in the eyes of the public.46 46.See Josh O’Hara, Creating Civility: Using Reference Group Theory to Improve Inter-Lawyer Relations, 31 Vermont L. Rev. 965, 968 (2007) (describing costs of lawyer incivility and the movement’s development in response to incivility); Kathleen P. Browe, A Critique of the Civility Movement: Why Rambo Will Not Go Away, 77 Marq. L. Rev. 751, 752–57 (1994) (detailing the history of lawyer civility efforts, and the harms of lawyer incivility).Show More

The same is even more true of judges. As the primary representatives of the law, judges have a duty to maintain “the perceived integrity of the Court.”47 47.Deborah Hellman, The Importance of Appearing Principled, 37 Ariz. L. Rev. 1107, 1125 (1995); cf Liteky v. United States, 510 U.S. 540, 565 (1994) (“In matters of ethics, appearance and reality often converge as one.”).Show More That is why, time and again, the Supreme Court and individual Justices have emphasized the necessity of judicial temperaments of patience, tolerance, and respect. To take just one example, the Court in in re Snyder emphasized that “[a]ll persons involved in the judicial process—judges, litigants, witnesses, and court officers—owe a duty of courtesy to all other participants.”48 48.In re Snyder, 472 U.S. 634, 647 (1985).Show More

This commentary gestures towards a conclusion, that I will make plain below: judicial courtesy serves several institutionally preservative functions and, because of these functions, it is imperative that judges maintain a courteous tone in their writing.

The functions are these. For one, judicial courtesy has practical benefits. When opinions are courteous, they avoid distracting from the underlying legal reasoning,49 49.Randall T. Shepard, The Special Professional Challenges of Appellate Judging, 35 Ind. L. Rev. 381, 389 (2002) (“Venomous language obscures the law . . .”).Show More and undercutting the judiciary’s most fundamental function: saying what the law is. Simultaneously, courteous opinions avoid spurring satellite disputes, which place additional pressure on the already overburdened court system.50 50.Following the Varner decision numerous amici joined appeal, specifically taking issue with the opinion’s egregious language. The time taken—both for the brief writers and for the appellate courts to sift through the briefs—could have easily been avoided.Show More On a final practical note, judicial courtesy invites advocate courtesy as well. Judges, through both their in-court conduct and opinion writing, set the tone from the top.51 51.SeeErwin Chemerinsky, The Jurisprudence of Justice Scalia: A Critical Appraisal, 22 U. Haw. L. Rev. 385, 386 (2000); J. Lyn Entrikin, Disrespectful Dissent: Justice Scalia’s Regrettable Legacy of Incivility, 18 J. App. Practice & Process 201, 263 (2017).Show More Discourteous writing, can contribute to, if not fuel, attorney incivility and the attendant problems it causes.52 52.In the aftermath of Varner attorneys have repeatedly cited the opinions to justify their own offensive misgendering in filings. E.g., Brief of Amicus Curiae Women’s Liberation Front in Support of Appellants and Reversal at 34–35, Hecox v. Little, 20-35813 (9th Cir. Nov. 19, 2020); Reply Memorandum in Support of Plaintiff’s Motion to Disqualify at 5, Soule v. Connecticut Assoc. Schools, 3:20-cv-00201-RNC (D. Conn. June 12, 2020).Show More

For two, courtesy advances the institutional goal of administering justice. Obviously, litigants are not likely to partake in processes in which they believe they will be disrespected.53 53.Brief of 83 Legal Ethics Professors as Amici Curiae in Support of Rehearing En Banc at 10, United States v. Varner, No. 19-40016 (5th Cir. 2020).Show More When opinions are discourteous, they increase the likelihood that persons will seek justice extrajudicially, rather than by invoking the judicial process. As such, judicial courtesy contributes to social order.

For three, courtesy avoids sanctioning societal oppression, thereby preserving public trust in the judiciary. Given the authority accorded to courts, when their members use discourteous language particularly towards minority group members, they provide cover for others to be discourteous as well. To see this point in action, consider that, following Varner, the appellant experienced “an increase in verbal and emotional abuse from prison officials and from fellow prisoners who . . . used the majority’s opinion as justification for their mockery.”54 54.Petition for Rehearing En Banc at 11, United States v. Varner, 948 F.3d 250 (5th Cir. 2020).Show More Courteous language avoids the appearance of judicial approval of discrimination.55 55.Cf.Code of Conduct for U.S. Judges Canon 2 cmt. (Am. Bar Ass’n 2019) (“[P]ublic manifestation by a judge of the judge’s knowing approval of invidious discrimination on any basis gives the appearance of impropriety . . . and diminishes public confidence in the integrity and impartiality of the judiciary.”).Show More Since faith in institutions is eroded where citizens view them as furthering oppression, judicial courtesy is important, as it avoids any diminution of public trust.56 56.Cf. Judge Vanessa Ruiz, The Role of Women Judges and a Gender Perspective in Ensuring Judicial Independence and Integrity, UNODC (n.d.), https://www.unodc.org/‌dohadeclaration/‌en/news/2019/01/the-role-of-women-judges-and-a-gender-perspective-in-ensuring-judicial-independence-and-integrity.html [https://perma.cc/L687-PKZC] (“The judiciary will not be trusted if it is viewed as a bastion of entrenched elitism, exclusivity, and privilege, oblivious to changes in society and to the needs of the most vulnerable. Indeed, citizens will find it hard to accept the judiciary as the guarantor of law and human rights if judges themselves act in a discriminatory manner.”).Show More

For four, courtesy preserves public confidence in the courts. The idea that the judiciary is honorable remains “indispensable to justice in our society.”57 57.Code of Conduct for U.S. Judges Canon 1 (Am. Bar Ass’n 2019).Show More A part of that confidence is maintained through judges’ conduct. 58 58.Leslie W. Abramson, Canon 2 of the Code of Judicial Conduct, 79 Marq. L. Rev. 949, 951 (1996) (“The public has confidence in judges who show character, impartiality, and diligence.”).Show More Understandably, the public has more confidence in, and views more favorably, a judge whose behaviors evidence a commitment to fairness and equality. And, as the main source of court-citizen contact, opinions are read to stand for the values of the judges who write them. Thus, courteous opinions shore up our faith in the judiciary.

For five, judicial courtesy maintains the appearance of impartial and principled judgement, and in doing so preserves the courts’ legitimacy.59 59.Brief of Amici Curiae Civil Rights Organizations in Support of Appellant’s Petition for Rehearing En Banc at 8, United States v. Varner, No.19-40016 (5th Cir. 2020) (“[R]efusal to respect a party’s self-identity . . . can suggest bias and call into question whether the litigant received a fair hearing.”); Deborah Hellman, The Importance of Appearing Principled, 37 Ariz. L. Rev. 1107, 1126(1995) (documenting “the view that public officials generally have a duty to maintain an appropriate appearance in order to foster the public trust necessary to their role . . .”).Show More Having “neither sword nor purse,” the judiciary relies on its institutional legitimacy to effectuate compliance.60 60.The Federalist No. 78 (Alexander Hamilton).Show More Discourteous writing threatens this, by raising questions of judicial bias and personal hostility, whether or not they actually exist.61 61.Liteky v. United States, 510 U.S. 540, 565 (1994) (“In matters of ethics, appearance and reality often converge as one.”).Show More Judicial courtesy, therefore, safeguards the legitimacy of the court by avoiding the cast of suspicion on holdings in individual cases,62 62.Joshua E. Kastenberg, Evaluating Judicial Standards of Conduct in the Current Political and Social Climate: The Need to Strengthen Impropriety Standards and Removal Remedies to Include Procedural Justice and Community Harm, 82 Albany L. Rev. 1495, 1506 (2019) (“In situations in which a judge has evidenced overt bias or lack of respect against an identifiable group . . . the judge may cause the result of his or her trials to be suspect”).Show More and on the legal system on the whole.

Viewed thusly, judicial courtesy serves purposes that Varner’s dismissive account clearly misses. Courteous opinions have several practical benefits in addition to promoting the administration of justice, and preserving public confidence and trust in the judiciary, and bolstering the legitimacy of the courts as an institution.

Weighed alongside the laxity of the defenses outlined in the above Part, the answer to how courts should address gender diverse parties appears straightforward. Given that their role inherently requires judges to preserve the courts as an institution, they must strive to be courteous. Judges, therefore, should address trans litigants by their appropriate names, pronouns, and honorifics in legal opinions.

B. A Probable Counter: Misgendering as a Not Discourteous Acknowledgement of “Objective Truth”

This final Section closes the Essay by preempting a likely objection to my notes on the implications of judicial courtesy for misgendering in legal opinions. The argument is that using language corresponsive to genitals or sex-assigned-at-birth is an acknowledgement of “objective truth,” such that, even if judges do owe a duty of courtesy that instructs them to avoid offensive language, misgendering would not qualify.

The protestation has recently been gaining traction. Repeatedly, advocates for anti-transgender positions have couched their misgendering in claims about objective, unimpeachable truths.63 63.See, e.g., Brief of Great Lakes Justice Center as Amicus Curiae in Support of Petitioner at 6, R.G. & G.R. Harris Funeral Homes v. v. Equal Emp. Opportunity Comm’n., No. 18-107 (U.S. Aug. 21, 2019) (claiming sex is “an objective reality” and “immutable, innate, and a biological truth.”); Brief of Amicus Curiae Dr. Paul R. McHugh, M.D., in Support of Petitioner at 4, Gloucester Cty. Sch. Bd. v. G.G., No. 16-273 (U.S. Jan. 10, 2017) (claiming sex is an “objective biological reality”).Show More For instance, in a recent motion to intervene in Hecox v. Little, attorneys for the anti-LGBT group Alliance Defending Freedom alleged that their misgendering was “neither said nor intended [to be] discourteous,” but instead was a statement of “necessary accuracy.”64 64.Reply Memorandum in Support of Motion to Intervene at 8, Hecox v. Little, 1:20-cv-00184-CWD (D. Idaho June 16, 2020) (arguing “to speak coherently about the goals, justifications, and validity of the Fairness in Women’s Sports Act, it is necessary rather than ‘uncivil’ to” misgender).Show More With the increasing popularity of the same and similar excuses, it is worth considering how the objection would play out in the context of court opinions.

In this case, as in others, the objection is unconvincing. Without conceding that there is any confirmable “objective truth” involved, at the most basic level, the objection mistakenly relies on the premise that by virtue of being true, a statement is rendered acceptable. Obviously, that isn’t right. Quite often, the truth hurts. And, regularly, tact calls us to avoid making truthful statements when doing so will disparage.

In particular, it is clear that misgendering easily qualifies as discourteous conduct. A concrete illustration will help make this plain. Suppose upon marriage a woman chooses not to publicly adopt her partner’s name. Instead, she uses her pre-marital name, along with the title “Ms.” rather than “Mrs.” In that scenario, for someone who knows her decision to insist on using “Mrs.” and referring to her by her spouse’s last name—or worse, with the convention, Mrs. Partner’s Name—would, quite clearly, be wrong. As would choosing to disparately refer to her by her first name, while using last names and titles for others, in an effort to avoid acknowledging the woman’s appropriate forms of address. In either case, the speaker’s references serve to treat the woman in a manner she has made known she dislikes, in addition to willfully ignoring the choices the woman has made for herself, disregarding her autonomy, and frustrating her asserted identity. For these and other reasons, we can agree those forms of address would be disrespectful, and perhaps even insulting. Misgendering, whether considered “objectively true” or not, is discourteous on the same logic.65 65.For a more extensive analysis of why misgendering is discourteous, offensive, discriminatory, and harmful, see McNamarah, supranote 40, at 131–60.Show More

At the same time, the objection assumes misgendering is the only means of capturing the “truth.” That reasoning is lacking. As we know, sometimes, courtesy requires us to use euphemisms without changing our point. It is quite possible to cut to the heart of the same matter in both offensive and non-offensive ways. If courts need to make a point differentiating between or specifying cisgender and transgender persons the language “cisgender” and “transgender” accomplishes just that.

Finally, the argument takes as given that the context and timing of the purported “truth” are meaningless. Again, that is false. Speaking what one views to be an “objective truth” may be appropriate in one situation, and inappropriate in another. This is particularly true for decisionmakers. Recall that in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Supreme Court reasoned that a Commissioner’s statements that “religion has been used to justify all kinds of discrimination throughout history,” was evidence of anti-religious animus.66 66.Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1729 (2018).Show More

Yet, the Commissioner’s statements were ones of fact: objective truths, if you will. After all, countless forms of discrimination and oppression have advanced and been defended on religious grounds.67 67.Examples come easily. To take just one, anti-Black discrimination in American history, from enslavement to Jim Crow segregation and anti-miscegenation laws, has benefited from religious cover. SeeLeora F. Eisenstadt, Enemy and Ally: Religion in Loving v. Virginia and Beyond, 86 Ford. L. Rev. 2659, 2660–63 (2018); Kyle C. Velte, Recovering the Race Analogy in LGBTQ Religious Exemption Cases, 42 Cardozo L. Rev. 67, 74–76 (2020).Show More Strikingly, however, it was not the veracity of the statements that struck the Masterpiece Court as improper. Though the Commissioner’s statements were categorically true, it was the timing of the opinions that was inappropriate. If Masterpiece means anything, it is that the context of the purported “truths”—rather than their accuracy or reliability—which is the dispositive factor in determining when decisionmakers’ statements demonstrate bias. Accordingly, regardless of how “objectively true” one might view misgendering language to be, the context and timing makes it inappropriate for legal opinions.

Conclusion

The language judges use matters. No matter how insignificant the choice of words may seem, legal opinions send important messages about which citizens are respected, and how we should treat others. Recently, apparently ignoring those principles, judges have offered several reasons to justify their misgendering of gender diverse parties in their legal writing.

The arguments don’t work. As demonstrated, of the eight defenses of judicial misgendering examined here, most suffer from explanatory deficiencies, several are implausible, others misconstrue case law, and none are particularly convincing. Rather than giving unsound arguments in defense of their language, courts should instead remember the institutionally-protective qualities of judicial courtesy. Doing so finds courtesy calls courts to use gender appropriate forms of address in their written opinions.

  1. * Independent; J.D., Cornell Law School; B.A., Franklin & Marshall College. They/them pronouns. Thanks to Monty Zimmerman for early feedback, and to the participants in the 2021 Cornell Law School faculty summer workshop series, whose comments on a companion piece helped shaped my thoughts on this one as well. Many thanks also to the Virginia Law Review Online team, whose excellent editorial work made the Essay substantially better.

    This Essay builds upon and rounds out ideas introduced in prior work. See Chan Tov McNamarah, Misgendering as Misconduct, 68 UCLA L. Rev. Disc. 40 (2020); Chan Tov McNamarah, Misgendering, 109 Cal. L. Rev. 2227 (2021). ↑

  2. 140 S.Ct. 1731 (2020) (holding that Title VII’s prohibition against sex discrimination in employment applies to gay and transgender individuals). ↑
  3. E.g., Rachel Slepoi, Bostock’s Inclusive Queer Frame, 107 Va. L. Rev. Online 67, 67-68, 82 (2020) (explaining the case’s inclusive account of sex-based discrimination, and underscoring the import for trans discrimination case law moving forward); Guha Krishnamurthi & Peter Salib, Bostock and Conceptual Causation, Yale J. Reg. Notice & Comment (July 22, 2020), https://www.yalejreg.com/nc/bostock-and-conceptual-causation-by-guha-krishnamurthi-peter-salib/ [https://perma.cc/WU2G-QZZV](using the case as a case study to tease out issues of multifactorial causation in antidiscrimination jurisprudence). ↑
  4. Compare Adam Liptak, Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules, N.Y. Times (June 15, 2020), https://www.nytimes.com/2020/‌06/15/us/gay-transgender-workers-supreme-court.html [https://perma.cc/9NFA-URBN] (summarizing celebration of the holding), with Hadley Arkes, A Morally Empty Jurisprudence, First Things (June 17, 2020), https://www.firstthings.com/web-exclusives/‌2020/06/a-morally-empty-jurisprudence [https://perma.cc/BH3Q-ZUEP] (calling the case “the Roe v. Wade for transgenderism [sic], with effects that will ripple out widely in our country, touching and disfiguring our private lives.”). ↑
  5. Unsurprisingly, trans-antagonistic commentators have, however, been more wont to notice this. E.g., Ed Whelan, Bostock Majority: A ‘Trans Woman’ Is Not a Woman, Nat’l Rev. (June 18, 2020), https://www.nationalreview.com/bench-memos/bostock-majority-a-trans-woman-is-not-a-woman/ (lamenting the Court’s “parrot[ing] . . . the rhetoric of transgender ideology” and calling the opinion’s reasoning “deeply unsound.”). ↑
  6.  E.g., Burt v. Titlow, 571 U.S. 12 (2013) (using the gender neutral “respondent” throughout); Farmer v. Brennan, 511 U.S. 825 (1994) (using the gender neutral “petitioner” throughout). ↑
  7. 920 F.3d 212 (5th Cir. 2019). ↑
  8. 948 F.3d 250 (5th Cir. 2020). ↑
  9. 991 F.3d 910 (8th Cir. 2021). ↑
  10. 948 F.3d at 255. ↑
  11. United States v. Pinson, 835 F. App’x. 390 (10th Cir. 2020) (adopting gender appropriate language for trans litigant); accord United States v. Rivera, 824 F. App’x. 930 (11th Cir. 2020); accord Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020); accord Jackson v. Kuepper, 813 F. App’x. 230 (7th Cir. 2020); Gomez-Ortega v. Barr, 804 F. App’x. 738 (9th Cir. 2020); accord Arrivillaga v. Att’y Gen. United States, 811 F. App’x. 756 (3d Cir. 2020). ↑
  12. Before evaluating the justifications, a short caveat is probably in order. In engaging with the arguments, I will set aside the authoring judges’ alleged histories of anti-LGBT positions and even overt transphobia. See, e.g., 39 LGBT Groups Oppose Confirmation of Stuart Kyle Duncan, Lambda Legal (Jan. 17, 2018), https://www.lambdalegal.org/in-court/legal-docs/dc_20180117_opposition-of-stuart-kyle-duncan [https://perma.cc/S9QD-XAD4]; Lambda Legal Letter of Concern About the Nomination of James Ho, Lambda Legal (Dec. 6, 2017), https://www.lambdalegal.org/in-court/legal-docs/dc_20171206_letter-of-concern-about-james-ho [https://perma.cc/KRW3-NSMK]; Lisa Keen, A Look at the LGBT Records of Trump’s Potential Court Picks, Bay Area Reporter (May 25, 2016), https://www.ebar.com/news///246311 [https://perma.cc/B792-RTMZ].

    I will assume that, while reviewing the cases before them, the judges set those histories aside as well. ↑

  13. 920 F.3d at 217. ↑
  14. Id. (citing Frontiero v. Richardson, 411 U.S. 677, 686 (1973)). ↑
  15. See Konitzer v. Frank, 711 F. Supp. 2d., 874, 912 (E.D.Wis. 2010) (finding referring to an inmate by her correct pronouns “does not appear to impinge on any . . . security issues.”). ↑
  16.  Recent Case: Gibson v. Collier, Harv. L. Rev. Blog (Apr. 12, 2019), https://blog.harvardlawreview.org/recent-case-_gibson-v-collier_/ [https://perma.cc/W37M-JEAA] (noting that the opinion “cit[ed] Frontiero out of context”). ↑
  17. See Chan Tov McNamarah, Misgendering as Misconduct, 68 UCLA L. Rev. Disc. 40, 52 (2020). ↑
  18. Gibson, 920 F.3d at 217 n.2. ↑
  19. See Brief for the Petitioner, R.G. & G.R. Harris Funeral Homes, No. 18-107, 8 (U.S. Aug. 16, 2019) (“Out of respect for Stephens and following this Court’s lead in Farmer v. Brennan [citation omitted], Harris tries to avoid use of pronouns and sex-specific terms when referring to Stephens.”); Amicus Brief of Free Speech Advocates in Support of Petitioner at 2, R.G. & G.R. Harris Funeral Homes, No. 18-107, 2 (U.S. Aug. 22, 2019) (“In Farmer v. Brennan, a case involving a ‘transsexual’ prisoner ‘who is biologically male,’ this Court’s eight-Justice majority opinion, authored by Justice Souter, scrupulously (and presumably intentionally) avoided all pronouns in referring to the prisoner (except when directly quoting other sources) [citations omitted].”). ↑
  20. See Ezra Ishmael Young, What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens, 11 Cal. L. Rev. Online 9, 33-34 (2020) (analyzing oral argument transcript). ↑
  21. 948 F.3d at 252 (5th Cir. 2020). ↑
  22. Id. at 253. ↑
  23. To be clear, I think that an opinion using misgendering language differs from one mentioning or quoting it. See Paul Saka, Quotation and the Use-Mention Distinction, 107 Mind 113 (1998). To see the difference, imagine a discrimination case where the court is quoting misgendering language as proof of bias or prejudice. I could be convinced that there might be good reason to quote exactly what was said to aid the reader fully grasp the nature of the discriminatory context, at least with an inserted “sic.” See McNamarah, supra note 16, at 60–61 (using that convention).

    Alternatively, the court could use the parenthetical “misgendering in original” after the citation, to distance itself from the language. See, e.g., Lihi Yona & Ido Katri, The Limits of Transgender Incarceration Reform, 31 Yale J.L. & Feminism 201, 212 n.39 (2020) (using that convention). ↑

  24. Even that approach, though, would be problematic unless the court used gender-neutral references for all parties, rather than singling out gender diverse ones. ↑
  25. The slope needn’t be slippery. For the sake of argument: A court could plausibly differentiate binary and gender-neutral pronouns from neopronouns on the argument that the former are widely used, while the latter are not. Put as such, neopronouns require the speaker or author to learn a completely new set of pronouns; binary and gender-neutral pronouns do not. ↑
  26. See Andrew R. Flores et al., How Many Adults Identify as Transgender in the United States? 2 (Jun. 2016) (concluding transfolk account for 0.6% of the adult population). ↑
  27. See Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey 49-50 (2016) (finding only 29% of the 27,700+ trans respondents used they/them/their pronouns, 2% used ze/hir pronouns, and a mere 4% used neopronouns). ↑
  28. Compare Bostock v. Clayton County at 1782 (Alito, J., dissenting), and Varner, 948 F.3d 257, with SAI v. Transp. Sec. Admin., 315 F. Supp. 3d 218, 249 (D.D.C. 2018) (using the gender neutral they/them) and Doe v. Fedcap Rehab. Servs., 2018 U.S. Dist. LEXIS 71174 at *1 (S.D.N.Y. 2018) (same), and Henderson v. Minnesota, 2019 U.S. Dist. LEXIS 228230 at *2 n.2 (D. Minn. 2019). ↑
  29. Varner, 948 F.3d 250, 254–55 (5th Cir. 2020). ↑
  30. Id. at 255 (emphasis added). ↑
  31. See Code of Conduct for United States Judges Canon 3(A)(3) (2019); Model Code Of Judicial Conduct Canon 2 r. 2.8(B) (Am. Bar Ass’n 2020). ↑
  32. E.g., Lynch v. Lewis, 2014 U.S. Dist. LEXIS 63111, at *4 n.3 (M.D. Ga. Mar. 24, 2014) (granting in part a trans plaintiff’s “Motion for Feminine Form of Address and Use of Female Pronouns” requiring defense use female pronouns in court and filings); Qz’Etax v. Ortiz, 170 Fed. App’x. 551, 553 (10th Cir. 2006) (upholding pro se trans appellant’s “motion for the continued usage of proper female pronouns”). ↑
  33. See Chan Tov McNamarah, Language Use in Cases Involving Trans Parties, 1979–2018, (unpublished manuscript on file). ↑
  34. The other results: 39 misgender trans parties (11.64%), 5 use inconsistent language (1.49%), and in 9 references the parties’ gender—and thus pronouns—are unclear (2.68%). Id. ↑
  35. Thomason, 2021 U.S. App. LEXIS 7552 (8th Cir. Mar. 16, 2021). ↑
  36. Id. at *5. ↑
  37. Id. at *6. ↑
  38. The rationale also ignores the number of appellate courts that have used gender-appropriate language, despite district courts in earlier proceedings misgendering litigants. Compare, e.g., Farmer v. Moritsugu, 742 F. Supp. 525, 526 (W.D. Wisc. 1990) (misgendering Dee Farmer), with Farmer v. Haas, 990 F.2d 319, 320 (7th Cir. 1993) (“Farmer prefers the female pronoun and we shall respect her preference”). ↑
  39. Thomason, 2021 U.S. App. LEXIS 7552 at *6. ↑
  40. Cf. generally Darren K. LaScotte, Singular They: An Empirical Study of Generic Pronoun Use, 91 Am. Speech 62 (2016); Evan D. Bradley, The Influence of Linguistic and Social Attitudes on Grammaticality Judgments of Singular ‘They,’ 78 Lang. Sci. 1, 1 (2020); Laura Louise Paterson, Epicene Pronouns in UK National Newspapers: A Diachronic Study, 35 ICAME J. 171 (2011). ↑
  41. Chanticleer Holdings Inc., 2020 NLRB LEXIS 72, at *8 (Nat’l Lab. Rels. Bd. Feb. 19, 2020). ↑
  42. “To ‘ungender’ . . . involves the asymmetrical use of gendered titles, terms, or pronouns for cisgender people but not for gender-diverse ones. It may also involve the deliberate use of gender-neutral language where the referent explicitly” makes their gender known. Chan Tov McNamarah, Misgendering, 109 Cal. L. Rev. 101, 127 (2021).

    Ungendering is discriminatory because it involves disparate withholding of acknowledgement and respect from gender minorities, while offering it to cisgender persons—akin to historical examples of the refusal to use honorifics when addressing or referring to Black persons, or professional titles for women, while offering them to white persons and men, respectively. Id. at 128. ↑

  43. See Brief of Free Speech Advocates in Support of Petitioner at 2, R.G. & G.R. Harris Funeral Homes v. Equal Emp. Opportunity Comm’n, No. 18-107 (U.S. Aug. 22, 2019) (stating the “Court should either follow the Farmer model and simply refer to ‘Stephens’ or ‘respondent,’ or else . . . employ pronouns as they have been used since the dawn of language, namely, to refer to the biological sex of a person.”).

    Centuries of male generics used in reference for women or mixed-sex groups render the latter half of the brief’s reasoning historically inaccurate. ↑

  44. Susan Burgess, Outing Courtesy: The Role of Rude Dissent in Rule of Law Systems, 38 L. & Soc. Inquiry 206, 207 (2013) (writing courtesy “facilitates interpersonal exchange and fosters social peace despite small or even great differences that arise in the course of everyday life.”); David McPherson, Manners and the Moral Life, in The Theory and Practice of Virtue Education (2018) (arguing courtesy helps “social life to go well”). ↑
  45. Sarah Buss, Appearing Respectful: The Moral Significance of Manners, 109 Ethics 795, 796–97 (1999). ↑
  46. Neil M. Gorsuch, A Republic, If You Can Keep It 31 (2019). ↑
  47. See Josh O’Hara, Creating Civility: Using Reference Group Theory to Improve Inter-Lawyer Relations, 31 Vermont L. Rev. 965, 968 (2007) (describing costs of lawyer incivility and the movement’s development in response to incivility); Kathleen P. Browe, A Critique of the Civility Movement: Why Rambo Will Not Go Away, 77 Marq. L. Rev. 751, 752–57 (1994) (detailing the history of lawyer civility efforts, and the harms of lawyer incivility). ↑
  48. Deborah Hellman, The Importance of Appearing Principled, 37 Ariz. L. Rev. 1107, 1125 (1995); cf Liteky v. United States, 510 U.S. 540, 565 (1994) (“In matters of ethics, appearance and reality often converge as one.”). ↑
  49. In re Snyder, 472 U.S. 634, 647 (1985). ↑
  50. Randall T. Shepard, The Special Professional Challenges of Appellate Judging, 35 Ind. L. Rev. 381, 389 (2002) (“Venomous language obscures the law . . .”). ↑
  51. Following the Varner decision numerous amici joined appeal, specifically taking issue with the opinion’s egregious language. The time taken—both for the brief writers and for the appellate courts to sift through the briefs—could have easily been avoided. ↑
  52. See Erwin Chemerinsky, The Jurisprudence of Justice Scalia: A Critical Appraisal, 22 U. Haw. L. Rev. 385, 386 (2000); J. Lyn Entrikin, Disrespectful Dissent: Justice Scalia’s Regrettable Legacy of Incivility, 18 J. App. Practice & Process 201, 263 (2017). ↑
  53. In the aftermath of Varner attorneys have repeatedly cited the opinions to justify their own offensive misgendering in filings. E.g., Brief of Amicus Curiae Women’s Liberation Front in Support of Appellants and Reversal at 34–35, Hecox v. Little, 20-35813 (9th Cir. Nov. 19, 2020); Reply Memorandum in Support of Plaintiff’s Motion to Disqualify at 5, Soule v. Connecticut Assoc. Schools, 3:20-cv-00201-RNC (D. Conn. June 12, 2020). ↑
  54. Brief of 83 Legal Ethics Professors as Amici Curiae in Support of Rehearing En Banc at 10, United States v. Varner, No. 19-40016 (5th Cir. 2020). ↑
  55. Petition for Rehearing En Banc at 11, United States v. Varner, 948 F.3d 250 (5th Cir. 2020). ↑
  56. Cf. Code of Conduct for U.S. Judges Canon 2 cmt. (Am. Bar Ass’n 2019) (“[P]ublic manifestation by a judge of the judge’s knowing approval of invidious discrimination on any basis gives the appearance of impropriety . . . and diminishes public confidence in the integrity and impartiality of the judiciary.”). ↑
  57. Cf. Judge Vanessa Ruiz, The Role of Women Judges and a Gender Perspective in Ensuring Judicial Independence and Integrity, UNODC (n.d.), https://www.unodc.org/‌dohadeclaration/‌en/news/2019/01/the-role-of-women-judges-and-a-gender-perspective-in-ensuring-judicial-independence-and-integrity.html [https://perma.cc/L687-PKZC] (“The judiciary will not be trusted if it is viewed as a bastion of entrenched elitism, exclusivity, and privilege, oblivious to changes in society and to the needs of the most vulnerable. Indeed, citizens will find it hard to accept the judiciary as the guarantor of law and human rights if judges themselves act in a discriminatory manner.”). ↑
  58. Code of Conduct for U.S. Judges Canon 1 (Am. Bar Ass’n 2019). ↑
  59. Leslie W. Abramson, Canon 2 of the Code of Judicial Conduct, 79 Marq. L. Rev. 949, 951 (1996) (“The public has confidence in judges who show character, impartiality, and diligence.”). ↑
  60. Brief of Amici Curiae Civil Rights Organizations in Support of Appellant’s Petition for Rehearing En Banc at 8, United States v. Varner, No.19-40016 (5th Cir. 2020) (“[R]efusal to respect a party’s self-identity . . . can suggest bias and call into question whether the litigant received a fair hearing.”); Deborah Hellman, The Importance of Appearing Principled, 37 Ariz. L. Rev. 1107, 1126 (1995) (documenting “the view that public officials generally have a duty to maintain an appropriate appearance in order to foster the public trust necessary to their role . . .”). ↑
  61. The Federalist No. 78 (Alexander Hamilton). ↑
  62. Liteky v. United States, 510 U.S. 540, 565 (1994) (“In matters of ethics, appearance and reality often converge as one.”). ↑
  63. Joshua E. Kastenberg, Evaluating Judicial Standards of Conduct in the Current Political and Social Climate: The Need to Strengthen Impropriety Standards and Removal Remedies to Include Procedural Justice and Community Harm, 82 Albany L. Rev. 1495, 1506 (2019) (“In situations in which a judge has evidenced overt bias or lack of respect against an identifiable group . . . the judge may cause the result of his or her trials to be suspect”). ↑
  64. See, e.g., Brief of Great Lakes Justice Center as Amicus Curiae in Support of Petitioner at 6, R.G. & G.R. Harris Funeral Homes v. v. Equal Emp. Opportunity Comm’n., No. 18-107 (U.S. Aug. 21, 2019) (claiming sex is “an objective reality” and “immutable, innate, and a biological truth.”); Brief of Amicus Curiae Dr. Paul R. McHugh, M.D., in Support of Petitioner at 4, Gloucester Cty. Sch. Bd. v. G.G., No. 16-273 (U.S. Jan. 10, 2017) (claiming sex is an “objective biological reality”). ↑
  65. Reply Memorandum in Support of Motion to Intervene at 8, Hecox v. Little, 1:20-cv-00184-CWD (D. Idaho June 16, 2020) (arguing “to speak coherently about the goals, justifications, and validity of the Fairness in Women’s Sports Act, it is necessary rather than ‘uncivil’ to” misgender). ↑
  66. For a more extensive analysis of why misgendering is discourteous, offensive, discriminatory, and harmful, see McNamarah, supra note 40, at 131–60. ↑
  67. Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1729 (2018). ↑

  68. Examples come easily. To take just one, anti-Black discrimination in American history, from enslavement to Jim Crow segregation and anti-miscegenation laws, has benefited from religious cover. See Leora F. Eisenstadt, Enemy and Ally: Religion in Loving v. Virginia and Beyond, 86 Ford. L. Rev. 2659, 2660–63 (2018); Kyle C. Velte, Recovering the Race Analogy in LGBTQ Religious Exemption Cases, 42 Cardozo L. Rev. 67, 74–76 (2020). ↑

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