Volume 107

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). ↑

The But-For Theory of Anti-Discrimination Law

Discrimination law has long been in theoretical crisis. Its central theory—disparate treatment law—has no agreed-upon core principles. Because prevailing theories of discrimination once treated “disparate treatment” and “discriminatory intent” as coextensive—something we now know not to be true—it is unclear whether all “disparate treatment” is truly proscribed. In the absence of a clear commitment to proscribing all disparate treatment, judicial law-making has run amok. The result has been the development of a network of technical rules that have all but eclipsed the factual question of whether discrimination took place, and that have been devastating to discrimination plaintiffs’ success.

This Article contends that the time has come to resolve the theoretical crisis in anti-discrimination law. In a series of recent cases, the Supreme Court has situated the question of whether an individual or group would have fared differently “but for” their protected class status as the central defining question of anti-discrimination law. Moreover, the Court has suggested that this inquiry flows from anti-discrimination law’s plain text. As such, there are compelling arguments to be made that a true disparate treatment principle—the but-for principle—is the textually mandated inquiry in anti-discrimination law, and that judicial deviations from this standard are illegitimate.

This idea—that our anti-discrimination laws must reach all contexts where the outcome would be different “but for” the sex, race, or other protected class status of those affected—is simultaneously conservative in its aspirations and potentially radical in its legal effects. Such an approach comports with our often-stated commitment that all individuals in our society be given equal opportunities, and not be judged on the basis of their race, sex, or other protected class status. But anti-discrimination law has strayed far from these anti-disparate treatment principles—and thus taking such a commitment seriously would have truly significant effects. This Article thus suggests that reorienting our inquiry around the factual question of whether the outcome would be different “but for” protected class status is important to ensuring that anti-discrimination law can achieve its basic promises.

Introduction

Discrimination law has long been in theoretical crisis. Because its core theory—disparate treatment—was recognized at a time when “disparate treatment” and “intentional discrimination” were believed to be one and the same, anti-discrimination law’s foundational cases conflate the two.1 1.See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 & n.15, 382 (1977); see also infra notes 39–60 and accompanying text (discussing this issue in depth).Show More This has created a fundamental question as to disparate treatment law’s central theoretical principles. Does disparate treatment law in fact prohibit all “disparate treatment,” (i.e., all decisions in which the outcome would have been different “but for” race, sex, or other protected class status)? Or does it prohibit only the narrower category of “intentional discrimination” (i.e., decisions in which protected class status played a conscious role)?

These questions about anti-discrimination law’s core principles remain unanswered even today, with important adverse consequences for anti-discrimination law. In the absence of a clear commitment to barring “disparate treatment,” judicial law-making has run amok. Few judges even ask the question of whether a policy decision—or an employment action—would have turned out differently had the individual or group affected been white, male, or of a majority religion.2 2.See, e.g., Katie Eyer, The Return of the Technical McDonnell Douglas Paradigm, 94 Wash. L. Rev. 967, 1017 (2019). In the interest of brevity, I do not always list every protected group when giving examples of the “but for” principle. This is not intended to suggest the exclusion of other groups from the but-for principle, and, indeed, the application of the but-for principle would be the same across all of the various contexts in which groups have protections under statutory or constitutional anti-discrimination law.Show More Instead, across both constitutional and statutory law, convoluted doctrines result in the dismissal of the majority of anti-discrimination claims, whether or not “disparate treatment” (in the literal sense) has in fact occurred.3 3.See infranotes 61–71 and accompanying text; Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law 13–14, 40–44, 158 (2017).Show More

This Article suggests that the time has come to address this theoretical crisis, and recenter anti-discrimination doctrine around what ought to be its core principles. As the very name of the doctrine suggests, “disparate treatment” law is supposed to be centrally concerned with differential treatment. This simple principle—that all groups and individuals have a right to receive the same treatment at the hands of government, employers, and others, regardless of race, sex, or other protected class status—is central to what anti-discrimination law is supposed to do. If our “anti-discrimination” principles regularly absolve defendants of liability where groups or individuals in fact would have been treated better if they were white, or men, or non-disabled, then anti-discrimination law is not worthy of its name.

While addressing anti-discrimination law’s theoretical crisis has long been urgent, it has recently become far more plausible. Across a series of recent cases, the Supreme Court has articulated the view that anti-discrimination’s law’s central defining principle is what I refer to in this Article as the “but-for principle.”4 4.Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (Age Discrimination in Employment Act claim); see, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (Title VII retaliation claim); Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1018–19 (2020) (42 U.S.C. § 1981 claim); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739–40 (2020) (Title VII sex discrimination claim); see also City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (same); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (Title VII race discrimination claim).Show More Thus, the Court has embraced the view that where the outcome would be different “but for” the protected class status of those affected, anti-discrimination law is violated.5 5.See sources cited supra note 4.Show More This is of course simply another way of saying that disparate treatment (in its literal, not technical, sense) is proscribed. As such, the Court’s recent cases offer renewed opportunities to suggest that anti-discrimination law must be centered on a true “disparate treatment” theory, which would mandate liability wherever differential treatment occurs (i.e., wherever the outcome would be different “but for” protected class status).

Importantly, the Court has situated its reasoning in these cases as founded on the “plain meaning” of anti-discrimination law’s statutory text.6 6.Bostock, 140 S. Ct. at 1743, 1750.Show More As such, they offer an unusual opportunity to argue that a true disparate treatment principle not only resides at the core of anti-discrimination law but also in its plain textual meaning. In a Supreme Court where textualism is the ascendant method of statutory interpretation, this makes it uniquely plausible to claim that a commitment to proscribing all actual differential treatment is not only the preferred theory of disparate treatment law but (at least for statutory anti-discrimination law) the textually mandated one. And because disparate treatment doctrine has typically been construed comparably across the constitutional and statutory domains,7 7.See, e.g., Richard Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341, 1354–55 (2010). Importantly, no textual barriers would exist to such an interpretation of the Equal Protection Clause, which is fully consistent textually with the but-for principle. SeeU.S. Const. amend. XIV, § 1 (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”).The one major difference between disparate treatment principles in the constitutional context and in most statutory contexts has traditionally been that the Constitution permits the government to show they had a sufficient “interest” to justify the discrimination. This Article addresses only the initial threshold inquiry into whether there was discrimination—and if so, of what kind—and does not address the ability of the government to justify the discrimination based on the government’s interests.Show More such a move could have profound impacts in the constitutional domain as well. As such, the current moment offers unique opportunities for resolving the theoretical crisis at the heart of anti-discrimination law and for addressing the many doctrinal pathologies that have arisen out of it.

Ironically, if there is one major obstacle to harnessing this recent turn in the Supreme Court’s case law toward a true disparate treatment paradigm, it may be those who are, in theory, most committed to building a meaningful body of anti-discrimination law. Many anti-discrimination scholars and advocates have critiqued the but-for principle—and indeed at times disparate treatment law in general—perceiving it as a weak substitute for preferred theories of anti-discrimination law, such as disparate impact and motivating factor liability.8 8.Indeed, in 2013, this Author joined a brief arguing against the but-for principle and in favor of a motivating factor standard. See Brief of Employment Law Professors as Amici Curiae in Support of Respondent at 5, app. 3, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (No. 12-484).Show More This longstanding opposition to the but-for principle may make anti-discrimination scholars and advocates reluctant to draw on these cases and accompanying theoretical principles, regardless of their potential.

But this Article suggests that the increased risks of embracing the but-for principle are slight—and that the opportunity costs of not doing so are considerable. The opportunity to recenter disparate treatment law around what should be its core theoretical commitment is not one we ought to take lightly. Without such a core theoretical commitment, we can expect to continue to see an anti-discrimination law without any central rudder, overrun by judge-made doctrines, and highly susceptible to individual judicial biases.9 9.See generally Sperino & Thomas, supra note 3, at 58–83 (describing in detail the judge-made doctrines that the courts use to routinely dismiss discrimination claims); Katie Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1276 (2012) (noting that dismissals on summary judgment and motions to dismiss are “extremely common in discrimination litigation, accounting for a full 86% of litigated outcomes”).Show More Punitive or harmful government policies that would not have been adopted “but for” the (minority) race of those affected will continue to proliferate and go unremedied.10 10.See, e.g., Petula Dvorak, We Scorned Addicts When They Were Black. It Is Different Now That They Are White, Wash. Post (Apr. 12, 2018), https://www.washingtonpost.com/local/we-hated-addicts-when-they-were-black-it-is-different-now-that-they-are-white/2018/04/12/cd845f20-3e5b-11e8-974f-aacd97698cef_story.html [https://perma.cc/E49E-ZSGX].Show More Employment decisions that treat women, minorities and members of the LGBTQ community more harshly than those who are men, white, cisgender and straight will continue to be evaluated—and often dismissed—under a network of doctrines that bear little relationship to whether differential treatment occurred.11 11.See Sperino & Thomas, supra note 3, at 1–4.Show More

In contrast, an embrace of the but-for principle—and centering it as anti-discrimination law’s core commitment—offers myriad concrete opportunities to argue for a more sensible and elegant approach to anti-discrimination law. Under the but-for principle, our foundational inquiry ought to be a simple and factual one: would the outcome have been different “but for” the race, sex, or other protected class status of those adversely affected? While in many cases answering this factual question may be difficult—just as it is in, for example, tort claims—the procedure for doing so is straightforward. The fact finder (jury or judge) ought to consider all of the relevant evidence and consider whether it appears, by a preponderance of the evidence, that a different outcome would have resulted had the protected class status of those affected been different. For example, would the Voter ID law have been passed, if those it had been likely to disenfranchise were overwhelmingly white? Or would a man have been assumed to be uncommitted to work—and thus denied a promotion—simply because he had small kids?

Centering this approach has the potential to address many of the pathologies that currently plague both statutory and constitutional anti-discrimination law. The search for a particular individual bad actor (or actors) becomes far less relevant if the but-for principle is the central defining principle of disparate treatment doctrine since the question can be asked without defining the precise role of particular individuals in producing the discriminatory action.12 12.Cf. McCleskey v. Kemp, 481 U.S. 279, 293–95 (1987) (rejecting Equal Protection claim in part on the grounds that statistical study could not identify the actors who engaged in discrimination).Show More So too, the search for a strong form of self-aware conscious intent should not be dispositive if our central focus is on whether the outcome would have been different “but for” the protected class of those affected. Self-aware intent certainly may be helpful in proving “but for” causation, but it is only one of many ways that but-for causation can be shown.13 13.Cf. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Calif. L. Rev. 997, 1029–38 (2006) (describing aspects of disparate treatment doctrine that assume the existence of a self-aware discriminatory actor).Show More Finally, widespread recognition of the but-for principle as the central defining feature of disparate treatment doctrine would provide an opportunity to address the myriad technical doctrines that currently result in the dismissal of numerous statutory anti-discrimination claims, without ever asking the core question of whether discrimination took place.14 14.See generally Sperino & Thomas, supra note 3 passim (detailing such doctrines and their impact on anti-discrimination litigants); Eyer, supra note 9, at 1276 (noting that dismissals of plaintiffs’ claims at motions to dismiss and summary judgment account for 86% of litigated outcomes in discrimination cases); Eyer, supra note 2, 969–72 (describing the ways in which technical rules attached to the McDonnell Douglas paradigm are used to dismiss anti-discrimination claims).Show More

In addition to providing the opportunity to address many of anti-discrimination law’s pathologies, the but-for principle could also provide a stronger foundation for many of anti-discrimination law’s equality-promoting doctrines and scholarly ideas. As the case of Bostock v. Clayton County demonstrates, the stereotyping principle—long critiqued by some for its lack of statutory foundation15 15.See, e.g., Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1066–67 (7th Cir. 2003) (Posner, J., concurring).Show More—can be situated comfortably within the but-for principle, offering it renewed vigor and promise.16 16.See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741, 1748–49 (2020).Show More Similarly, the theory of “negligent discrimination”—long argued for by some anti-discrimination scholars17 17.See infra notes 226–29 and accompanying text.Show More—becomes largely unnecessary under a but-for discrimination regime.18 18.See infra Section IV.B.Show More A true but-for standard would also effectuate many—though certainly not all—goals of other equality-promoting doctrines, such as motivating factor and disparate impact.19 19.See infra Part IV.Show More

As such, there are many potential benefits to embracing the but-for principle as the theoretical core of disparate treatment doctrine and relatively few genuine drawbacks. Indeed, many of the sources of opposition have rested on misconceptions about what “but for” demands or permits (including, for example, misconceptions that a but-for standard effectively requires a showing that protected class status was the sole cause of the defendant’s actions).20 20.See infra Part V.Show More Other sources of opposition have rested on fears that the but-for principle (or other anti-classificationist approaches) would endanger minority-protective doctrines such as affirmative action.21 21.See infra Subsection V.A.2.Show More But as this Article demonstrates, much of what anti-discrimination scholars and advocates hope to accomplish through alternatives to the but-for principle can be achieved through the embrace of the principle—and much of what they hope to avoid has already come to pass.22 22.Id.Show More

The time has come to resolve the theoretical crisis in anti-discrimination law. This Article takes up that work. The Parts that follow describe the theoretical crisis at the heart of anti-discrimination law, develop arguments for how it may be resolved, and suggest what the benefits of such a resolution might be. But before proceeding to this substantive discussion, it is important to note the role of terminology in both generating—and ultimately solving—anti-discrimination law’s theoretical crisis. For too long we have conflated two concepts—“disparate treatment” and “intentional discrimination”—and we ought not to do so going forward. Thus, in this Article, when I use the term “disparate treatment,” I mean a true disparate treatment standard—that the outcome would have been different “but for” the protected class of those affected. When I refer to “intentional discrimination,” I mean to describe the narrower class of disparate treatment that is perpetrated with discriminatory intent.23 23.Though there may be some theoretical possibility of distinguishing between “intent,” “purpose,” and “motive,” (and any number of scholars have attempted to do so) I follow the convention of the Supreme Court herein, which is to use those terms interchangeably. See Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1, 56 n.318 (2016).Show More Both of these standards are distinct from a “disparate impact” standard, which asks whether the burdens of a policy or practice fall more heavily on a particular group, but in a context where disparate treatment need not be present.24 24.42 U.S.C. § 2000e-2(k).Show More

The remainder of this Article proceeds as follows. Part I makes the case that anti-discrimination law is in conceptual crisis, describes the origins of this crisis, and details the ways that this theoretical crisis has led to serious pathologies in contemporary anti-discrimination law. Part II turns to the set of recent cases in which the Supreme Court has described the but-for principle—a true disparate treatment principle—as the central defining feature of anti-discrimination law and describes the potential of such cases for resolving anti-discrimination law’s theoretical crisis. Part III illustrates what a factual, but-for-centered inquiry might look like in an individual case and describes the radical systematic potential of arguing that this simple factual inquiry must control. Part IV describes how many of the objectives of the equality-promoting doctrines that anti-discrimination scholars and advocates have favored can be effectuated by turning to a true disparate treatment inquiry, via the but-for principle. Finally, Part V addresses likely headwinds to a project of recentering anti-discrimination law around the but-for principle, including potential progressive objections to such a project, potential legal obstacles, and judicial attitudes that may pose a barrier to reform.

  1. * Many thanks to Michael Carrier, Jessica Clarke, Tristin Green, Guha Krishnamurthi, Alexandra Lahav, Shannon Minter, Zalman Rothschild, D’Andra Shu, Joseph Singer, Sandra Sperino, Michael Selmi, Brian Soucek, Charles Sullivan, and Deb Widiss for helpful conversations and feedback regarding this project, and to the editors of the Virginia Law Review for excellent editorial suggestions. Special thanks are owed to Jessica Clarke, Sandra Sperino, and Deb Widiss for extensive feedback. This Article was presented at the 15th Annual Colloquium on Labor and Employment Law (“COSELL”) and at the Association of American Law Schools 2021 Meeting and received excellent feedback from participants. ↑
  2. See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 & n.15, 382 (1977); see also infra notes 39–60 and accompanying text (discussing this issue in depth). ↑
  3. See, e.g., Katie Eyer, The Return of the Technical McDonnell Douglas Paradigm, 94 Wash. L. Rev. 967, 1017 (2019). In the interest of brevity, I do not always list every protected group when giving examples of the “but for” principle. This is not intended to suggest the exclusion of other groups from the but-for principle, and, indeed, the application of the but-for principle would be the same across all of the various contexts in which groups have protections under statutory or constitutional anti-discrimination law. ↑
  4. See infra notes 61–71 and accompanying text; Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law 13–14, 40–44, 158 (2017). ↑
  5. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (Age Discrimination in Employment Act claim); see, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (Title VII retaliation claim); Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1018–19 (2020) (42 U.S.C. § 1981 claim); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739–40 (2020) (Title VII sex discrimination claim); see also City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (same); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (Title VII race discrimination claim). ↑
  6. See sources cited supra note 4. ↑
  7. Bostock, 140 S. Ct. at 1743, 1750. ↑
  8. See, e.g., Richard Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341, 1354–55 (2010). Importantly, no textual barriers would exist to such an interpretation of the Equal Protection Clause, which is fully consistent textually with the but-for principle. See
    U.S.

    Const. amend. XIV, § 1 (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). The one major difference between disparate treatment principles in the constitutional context and in most statutory contexts has traditionally been that the Constitution permits the government to show they had a sufficient “interest” to justify the discrimination. This Article addresses only the initial threshold inquiry into whether there was discrimination—and if so, of what kind—and does not address the ability of the government to justify the discrimination based on the government’s interests. ↑

  9. Indeed, in 2013, this Author joined a brief arguing against the but-for principle and in favor of a motivating factor standard. See Brief of Employment Law Professors as Amici Curiae in Support of Respondent at 5, app. 3, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (No. 12-484). ↑
  10. See generally Sperino & Thomas, supra note 3, at 58–83 (describing in detail the judge-made doctrines that the courts use to routinely dismiss discrimination claims); Katie Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1276 (2012) (noting that dismissals on summary judgment and motions to dismiss are “extremely common in discrimination litigation, accounting for a full 86% of litigated outcomes”). ↑
  11. See, e.g., Petula Dvorak, We Scorned Addicts When They Were Black. It Is Different Now That They Are White, Wash. Post (Apr. 12, 2018), https://www.washingtonpost.com/local/we-hated-addicts-when-they-were-black-it-is-different-now-that-they-are-white/2018/04/12/cd845f20-3e5b-11e8-974f-aacd97698cef_story.html [https://perma.cc/E49E-ZSGX]. ↑
  12. See Sperino & Thomas, supra note 3, at 1–4. ↑
  13. Cf. McCleskey v. Kemp, 481 U.S. 279, 293–95 (1987) (rejecting Equal Protection claim in part on the grounds that statistical study could not identify the actors who engaged in discrimination). ↑
  14. Cf. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Calif. L. Rev. 997, 1029–38 (2006) (describing aspects of disparate treatment doctrine that assume the existence of a self-aware discriminatory actor). ↑
  15. See generally Sperino & Thomas, supra note 3 passim (detailing such doctrines and their impact on anti-discrimination litigants); Eyer, supra note 9, at 1276 (noting that dismissals of plaintiffs’ claims at motions to dismiss and summary judgment account for 86% of litigated outcomes in discrimination cases); Eyer, supra note 2, 969–72 (describing the ways in which technical rules attached to the McDonnell Douglas paradigm are used to dismiss anti-discrimination claims). ↑
  16. See, e.g., Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1066–67 (7th Cir. 2003) (Posner, J., concurring). ↑
  17. See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741, 1748–49 (2020). ↑
  18. See infra notes 226–29 and accompanying text. ↑
  19. See infra Section IV.B. ↑
  20. See infra Part IV. ↑
  21. See infra Part V. ↑
  22. See infra Subsection V.A.2. ↑
  23. Id. ↑
  24. Though there may be some theoretical possibility of distinguishing between “intent,” “purpose,” and “motive,” (and any number of scholars have attempted to do so) I follow the convention of the Supreme Court herein, which is to use those terms interchangeably. See Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1, 56 n.318 (2016). ↑

  25. 42 U.S.C. § 2000e-2(k). ↑

Excited Delirium and Police Use of Force

­­­­

Excited delirium is often described as a psychiatric illness characterized by a sudden onset of extreme agitation, confusion, and aggression that can make people irrationally combative and dangerous. Since its inception in the 1980s, this medical condition has been used to justify deadly uses of force by police officers who detain individuals whose seemingly bizarre and uncontrollable behavior is believed to be a threat. Excited delirium is also commonly used by medical examiners and law enforcement to explain why the extreme toll taken on the bodies of people who experience these psychiatric episodes might lead to spontaneous death when they are in police custody. While this diagnosis is increasingly relied upon to explain police use of force and in-custody deaths, a curious matter remains unresolved: excited delirium, as an actual medical condition, does not seem to exist. It is not recognized as a valid medical diagnosis in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) nor in the World Health Organization’s International Classification of Diseases (“ICD-10”), which are the most authoritative classifications of mental health conditions. Moreover, excited delirium has an ignoble history linked to racism and fraudulent forensic science. Nevertheless, excited delirium continues to play a prominent role in policing, prosecutions, and § 1983 constitutional tort claims adjudicated by federal courts when victims of police violence seek damages for violations of their constitutional rights.

This Article provides the first comprehensive assessment of excited delirium in law and legal scholarship. Drawing upon an original dataset that collects information on in-custody deaths over the past decade tied to excited delirium, this Article documents the extent to which this condition has been articulated by legal and medical actors as a cause of death in situations where police have used force. The data show, among other findings, that at least 56% of deaths that occur in police custody that are attributed to excited delirium involve Black and Latinx victims. By putting these findings in conversation with an examination of the scientific literature and § 1983 police excessive force cases that discuss excited delirium, this Article draws attention to how excited delirium has become a misplaced medical diagnosis that obscures and therefore excuses questionable uses of police force that produce harm and death—especially in communities of color. By relying on pseudoscience with little evidence, medical examiners and coroners have given life to a false medical condition that is often used to shield police officers from accountability when they use unacceptably harsh and unlawful force. Excited delirium shifts the blame for these deaths to what is often wrongly presumed to be an individual’s tragic medical condition, which obfuscates the structural conditions that predictably lead to unlawful uses of police force that are the more proximate cause of harm. By offering this examination of excited delirium, its role in policing, and how it impacts the adjudication of excessive force claims, this Article suggests that policymakers and legal actors should be more attentive to how science and medicine can be used inappropriately to impede police accountability and justice for victims of police violence.

Introduction

Tommie McGlothen Jr. left his sister’s house in the Lakeside area of Shreveport, Louisiana, while experiencing a mental health crisis in April 2020.1 1.Gerry May, Attorney Disputes Coroner’s Finding in Death of Tommie McGlothen, Jr. After Police Confrontation, KTBS (June 10, 2020), https://www.ktbs.com/news/‌3investigates/attorney-disputes-coroners-finding-in-death-of-tommie-mcglothen-jr-after-police-confrontation/article_f100f4a6-ab7b-11ea-9d9b-1b7fb00daba3.html [https://perma.cc/8SEX-6Y42].Show More As he walked down the street, his erratic behavior gave a passerby the impression that McGlothen was attempting to break into a car. The police were summoned. When officers approached McGlothen, a dispute erupted and McGlothen was handcuffed. Witnesses noted that although McGlothen was not resisting at this point, the officers struck him several times and slammed him into a patrol car.2 2.Gerry May, Shreveport Man Dies in Police Custody; Family Fears “Cover-Up,” KTBS (May 31, 2020), https://www.ktbs.com/news/shreveport-man-dies-in-police-custody-family-fears-cover-up/article_ef947450-a20a-11ea-ac9e-87e6f58f8b87.html [https://perma.cc/6ADP-6EFT].Show More The officers then put McGlothen into the back of the car and left him there alone for nearly an hour. When they returned to check on him, McGlothen was unresponsive.3 3.Gerald Herbert & Rebecca Santana, ‘Denied the Truth’ Says Son of Black Man Who Died in Custody, ABC News (June 12, 2020, 5:19 PM), https://abcnews.go.com/US/wireStory/‌denied-truth-son-black-man-died-custody-71222156 [https://perma.cc/G9ES-NMPP].Show More Paramedics arrived at the scene, and witnesses said that the “ambulance drove off slowly with no lights or siren,”4 4.KSLA Investigates Reveals Video of Tommie McGlothen’s Last Encounter with Police, KSLA (June 8, 2020, 4:58 PM), https://www.ksla.com/2020/06/08/ksla-investigates-reveals-video-tommie-mcglothens-last-encounter-with-police/ [https://perma.cc/J2WM-NPJZ].Show More suggesting to some onlookers that he was already dead.

The local coroner, Dr. Todd Thoma, released a report on the cause of McGlothen’s death two months later. Curiously, he concluded that it was “natural”—the result of a psychiatric condition known as excited delirium. As Thoma explained:

These people get into a situation where they become confused, disoriented, violent, aggressive. They can’t listen to reason. There is no reason. This is a medical problem. This is not somebody’s behavioral problem . . . . When police try to restrain [people suffering from excited delirium] to try to take them into custody, it takes a lot of force sometimes to do that. . . . [They are also] impervious to pain.5 5.May, supra note 1.Show More

Thoma recites what has become an increasingly familiar narrative embraced by coroners, law enforcement, and other legal and medical actors when people seem to suddenly and inexplicably die after being involved with the police. The death is seen as an unfortunate, yet natural, byproduct of a psychiatric condition that causes people to get so overworked and agitated that they spontaneously die, through no fault of anyone or anything except for their own defective bodies.

But what is curious about the coroner’s initial determination of McGlothen’s death is that all available evidence suggests that he died from injuries other than some mysterious psychiatric disorder. Video evidence shows four police officers pummeling a handcuffed McGlothen for several minutes with repeated punches and kicks. They hit him with night sticks, tased him, and used mace.6 6.Herbert & Santana, supra note 3; May, supra note 2.Show More The coroner concluded that “[a]lthough [an] autopsy showed that Mr. McGlothen suffered multiple blunt force injuries from both his confrontation with police and the citizens earlier in the day and that evening, no injuries were life-threatening or could be considered serious.”7 7.Caddo Coroner: McGlothen’s Death Natural, Possibly Preventable, KSLA (June 9, 2020, 9:41 AM), https://www.ksla.com/2020/06/09/caddo-coroner-mcglothens-death-natural-possibly-preventable/ [https://perma.cc/QU2Q-25ZP]. In September 2020, four officers were charged with negligent homicide and malfeasance after Thoma “determined that Mr. McGlothen’s death ‘was preventable’ because the officers should have known he needed medical treatment.” Michael Levenson, Four Louisiana Officers Charged in Death of Black Man with Mental Illness, N.Y. Times, (Sept. 18, 2020), https://www.nytimes.com/2020/‌09/18/us/shreveport-police-officers-charged-death.html [https://perma.cc/X9D2-3FQ3].Show More However, when McGlothen’s family saw his corpse, they were shocked by its condition. His sister, Macronia McGlothen, said: “When we got to the funeral it looked like he had been beaten. His nose was broken. His jaw was broken. And his eye was swollen. It looked like he had a fractured skull. . . . So something’s not adding up.”8 8.May, supra note 2.Show More

* * *

Science and medicine have longstanding relationships with law and, in particular, law enforcement. Forensic scientists have worked with police investigators for many years to help understand crime scene evidence, and medical examiners have lent their knowledge of human anatomy and pathology to help investigators understand how mysterious deaths might have occurred. This intimate relationship between medical knowledge and legal procedures has been well documented.9 9.See, e.g., Radley Balko & Tucker Carrington, The Cadaver King and the Country Dentist, at xiv, xxii (2018) (noting that a single medical examiner testified in approximately 80% of Mississippi’s homicide cases over almost twenty years); Nigel McCrery, Silent Witnesses: The Often Gruesome but Always Fascinating History of Forensic Science, at xxiii (2014) (describing the impact of DNA testing on criminal adjudication around the world); Douglas Starr, The Killer of Little Shepherds: A True Crime Story and the Birth of Forensic Science 11–12 (2010) (explaining the origin of modern forensic science at the turn of the twentieth century).Show More However, less attention has been paid to how medical professionals might use their knowledge of science and medicine to participate in—and, at times, even conceal—unlawful uses of force by law enforcement that lead to community members’ harm and death. For example, in a recent article in the California Law Review, my co-author and I examined how paramedics have partnered with police to administer harsh drugs that have a sedative effect, also known as chemical restraints, on people who have been detained or arrested—many of whom are thought to be experiencing excited delirium.10 10.Osagie K. Obasogie & Anna Zaret, Medical Professionals, Excessive Force, and the Fourth Amendment, 109 Calif. L. Rev. 1 (2021).Show More These drugs are often used not for the health and well-being of the person under arrest, but to assist law enforcement by easing their efforts at managing what are often thought to be unmanageable bodies. Chemical restraints, such as ketamine, have been increasingly employed by police and EMS responders in recent years and have led to unnecessary hospitalizations and deaths of detained people.11 11.Patty Nieberg, Elijah McClain Case Leads to Scrutiny of Ketamine’s Use During Arrests, Denv. Post (Aug. 22, 2020, 2:31 PM), https://www.denverpost.com/2020/08/22/elijah-mcclain-ketamine-police-arrests/ [https://perma.cc/34SE-PB9R]; see also Gregory Yee, Mount Pleasant Man’s Ketamine-Related Death in Police Custody Under Investigation, Post & Courier (Feb. 28, 2020), https://www.postandcourier.com/news/mount-pleasant-mans-ketamine-related-death-in-police-custody-under-investigation/article_8b07f4de-59ae-11ea-adad-2f0e6f56d779.html [https://perma.cc/3M86-SJSP]; John Croman, Man Files Lawsuit Over Ketamine Injection, KARE (July 14, 2018, 1:35 PM), https://www.kare11.com/article/news/man-files-lawsuit-over-ketamine-injection/89-573408858 [https://perma.cc/G3D4-86QS].Show More

The questionable relationship between medical professionals and law enforcement is not limited to chemical restraints. Medical examiners and coroners play a critical role in the legal system in providing the official cause of death when someone dies in police custody. Forensic pathologists are often relied upon by police and investigators to explain how an unusual or unexpected death might have occurred. Excited delirium, as a psychiatric disorder that is thought to place significant physical stress on people, appears to offer medical insight into what seems like an epidemic of people suffering from drug dependency or mental health crises dying without explanation.

There are at least three aspects of excited delirium that are unusual and worthy of exploration. First, excited delirium appears to be more common among Black people. Although studies on excited delirium are scant, data suggest that Black people are diagnosed as suffering from it at much higher rates than White people.12 12.See infra Subsection III.C.2.Show More Second, the disease strangely seems to happen when police are around. For example, a recent review in Florida Today showed that nearly two-thirds of the deaths in Florida officially listed as being caused by excited delirium over the past decade occurred while the decedent was in police custody or had some other interaction with law enforcement.13 13.Alessandro Marazzi Sassoon, Excited Delirium: Rare and Deadly Syndrome or a Condition to Excuse Deaths by Police?, Fla. Today (Jan. 30, 2020, 2:52 PM), https://www.floridatoday.com/in-depth/news/2019/10/24/excited-delirium-custody-deaths-gregory-edwards-melbourne-taser/2374304001/ [https://perma.cc/4M2A-5GE3].Show More Yet, this may be an undercount as other deaths that implicate police officers in Florida and across the country might be presumed to involve excited delirium without official designation or further investigation.14 14.One example where this occurred is the police killing of George Floyd. One officer at the scene, Thomas Lane, described his concern that Floyd might have experienced excited delirium while being restrained (and ultimately strangled to death) by Officer Derek Chauvin. See Steve Eckert & Jeremy Jojola, KARE 11 Investigates: Did Officers Fear George Floyd Had ‘Excited Delirium’?, KARE 11 (Apr. 13, 2021), https://www.kare11.com/article/‌news/investigations/kare-11-investigates-did-officers-fear-george-floyd-had-excited-delirium/89-f7cc01f2-427c-48ab-a4fe-3f414c3c2236. Given the troubling and inaccurate manner that Minneapolis police initially reported the confrontation between police and George Floyd—the headline of the police press release read “Man Dies After Medical Incident During Police Interaction”—excited delirium could have easily become part of the way that Floyd’s death was described, but for video of the incident and public outcry. See Eric Levenson, How Minneapolis Police First Described the Murder of George Floyd, and What We Know Now, CNN (Apr. 21, 2021), https://www.cnn.com/2021/04/21/us/minneapolis-police-george-floyd-death/index.html [https://perma.cc/6TQN-ZTGA]. Indeed, even after the video of Floyd’s murder and social unrest, excited delirium still emerged as a possible explanation of his death during Derek Chauvin’s trial. See Steve Karnowski, Explainer: Why ‘Excited Delirium’ Came Up at Chauvin Trial?, AP News (Apr. 19, 2021), https://apnews.com/article/health-death-of-george-floyd-trials-george-floyd-3b60b3930023a2668e7fc63f903fc3aa.Show More And lastly, and perhaps most strangely, excited delirium is not a psychiatric disorder that is recognized by most medical professionals. Professional organizations such as the American Psychiatric Association15 15.Press Release, Am. Psychiatric Ass’n, Position Statement on Concerns About Use of the Term ‘Excited Delirium’ and Appropriate Medical Management in Out-of-Hospital Contexts (Dec. 2020), https://www.psychiatry.org/File%20Library/About-APA/Organization‌-Documents-Policies/Policies/Position-Use-of-Term-Excited-Delirium.pdf [https://perma.cc/2HVX-2X3N].Show More and the American Medical Association16 16.Press Release, Am. Med. Ass’n, New AMA Policy Opposes ‘Excited Delirium’ Diagnosis (June 14, 2021), https://www.ama-assn.org/press-center/press-releases/new-ama-policy-opposes-excited-delirium-diagnosis [https://perma.cc/T9DP-6XPT].Show More have been extremely critical of the term and oppose its use. Medical guidebooks used to identify psychiatric conditions, such as the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) and the International Classification of Diseases (“ICD-10”), do not acknowledge it as a valid psychiatric disorder. Moreover, the peer-reviewed literature on excited delirium is rather thin; there is no clear articulation of causal mechanisms or pathways to support the notion that excited delirium has a distinct pathology that leads to death.

Nevertheless, excited delirium as a psychiatric diagnosis allows law enforcement to pathologize people’s behavior, justify the use of chemical or physical restraints (and even deadly force), or explain how someone might unexpectedly die while in custody. As one example, a recent investigation uncovered that paramedics in Colorado used a chemical restraint called ketamine to sedate 902 people who were thought to be experiencing excited delirium in pre-hospital (i.e., public) settings over a two-and-a-half year period.17 17.Michael de Yoanna & Rae Solomon, Medics in Colorado Dosed 902 People with Ketamine for ‘Excited Delirium’ in 2.5 Years, KUNC (July 21, 2020, 5:35 PM), https://www.kunc.org/news/2020-07-21/medics-in-colorado-dosed-902-people-with-ketamine-for-excited-delirium-in-2-5-years [https://perma.cc/5RUA-ZEJA].Show More This includes the death of Elijah McClain, a twenty-three-year-old Black man who was approached by police while walking down a street after a 911 caller said he “looked sketchy.”18 18.Lucy Tompkins, Here’s What You Need to Know About Elijah McClain’s Death, N.Y. Times (last updated Oct. 19, 2021), https://www.nytimes.com/article/who-was-elijah-mcclain.html [https://perma.cc/6CTY-S438].Show More Multiple officers tackled him and placed him in a chokehold. Paramedics injected him with ketamine when they arrived at the scene after the officers reported that McClain had “incredible, crazy strength” and was “definitely on something,”19 19.Id.Show More which were “signs they took not as a struggle to survive, but as symptoms of excited delirium.”20 20.John Dickerson, Excited Delirium: The Controversial Syndrome That Can Be Used to Protect Police from Misconduct Charges, 60 Minutes (Dec. 13, 2020), https://www.cbsnews.com/news/excited-delirium-police-custody-george-floyd-60-minutes-2020-12-13/ [https://perma.cc/98HM-799S].Show More The amount of ketamine injected into McClain was grossly inappropriate for his size,21 21.Brian Maass, Ketamine Dose for Elijah McClain ‘Too Much,’ Says Anesthesiologist, CBS4 Denv. (July 7, 2020, 11:59 PM), https://denver.cbslocal.com/2020/07/07/elijah-mcclain-ketamine-aurora-police-anesthesiologist/ [https://perma.cc/5DR6-TNML] (“Multiple anesthesiologists are questioning the amount of Ketamine, a widely employed sedative, used on Elijah McClain just before he stopped breathing last August, with one doctor saying it was, ‘Too much, twice too much.’”).Show More and McClain went into cardiac arrest in the ambulance on the way to the hospital. He died several days later.

The numbers from Colorado regarding the widespread use of ketamine in response to perceived episodes of excited delirium, along with evidence from other states, demonstrate that this unfounded medical diagnosis is having an increasing influence on: (1) how law enforcement assess and respond to people that they engage and their decision to use force; (2) how medical examiners and coroners classify the cause of death when police interactions have deadly endings; and (3) how courts review the appropriateness of police use of force when these matters are litigated as possible instances of excessive force that might violate the Fourth Amendment. This Article examines how excited delirium is being used in law, places these developments in a social and historical context, and provides an evidence-based set of recommendations on how law and policy should move forward.

This examination of excited delirium is closely connected to doctrinal issues regarding police use of force. Part II reviews the social context and community impact of police violence while also being attentive to the doctrinal evolutions that constitute modern use of force jurisprudence to show how law makes it difficult to hold police accountable when excessive force is used. Understanding the role of law in undermining accountability provides an important context for appreciating how excited delirium, as an ostensible medical diagnosis, became enmeshed in the legal system as an additional way to exculpate police officers of wrongdoing. Part III offers a close examination of the history of excited delirium and reviews the scientific evidence used to support it as a diagnosis. This Part ends with a discussion of an original empirical dataset that I collected on how excited delirium has been used to describe the cause of deaths that occur in police custody as reported in local newspapers over the past decade. Part IV continues this assessment by examining how excited delirium has been discussed in federal courts, mostly in constitutional tort cases pursuant to 42 U.S.C. § 1983. An examination of these cases demonstrates that federal courts often give weight and meaning to excited delirium that is not supported by the existing scientific evidence. Part V provides a series of recommendations on how federal courts, local police departments, and medical professionals (including coroners and medical examiners) should approach excited delirium. I then briefly conclude in Part VI.

  1. * Haas Distinguished Chair and Professor of Law, University of California, Berkeley School of Law (joint appointment with the Joint Medical Program and School of Public Health). B.A., Yale University; J.D., Columbia Law School; Ph.D., University of California, Berkeley. Many thanks to Amelia Dmowska, Hayley MacMillen, and Anna Zaret for their excellent research assistance. ↑

  2. Gerry May, Attorney Disputes Coroner’s Finding in Death of Tommie McGlothen, Jr. After Police Confrontation, KTBS (June 10, 2020), https://www.ktbs.com/news/‌3investigates/attorney-disputes-coroners-finding-in-death-of-tommie-mcglothen-jr-after-police-confrontation/article_f100f4a6-ab7b-11ea-9d9b-1b7fb00daba3.html [https://perma.cc/8SEX-6Y42]. ↑

  3. Gerry May, Shreveport Man Dies in Police Custody; Family Fears “Cover-Up,” KTBS (May 31, 2020), https://www.ktbs.com/news/shreveport-man-dies-in-police-custody-family-fears-cover-up/article_ef947450-a20a-11ea-ac9e-87e6f58f8b87.html [https://perma.cc/6ADP-6EFT]. ↑

  4. Gerald Herbert & Rebecca Santana, ‘Denied the Truth’ Says Son of Black Man Who Died in Custody, ABC News (June 12, 2020, 5:19 PM), https://abcnews.go.com/US/wireStory/‌denied-truth-son-black-man-died-custody-71222156 [https://perma.cc/G9ES-NMPP]. ↑

  5. KSLA Investigates Reveals Video of Tommie McGlothen’s Last Encounter with Police, KSLA (June 8, 2020, 4:58 PM), https://www.ksla.com/2020/06/08/ksla-investigates-reveals-video-tommie-mcglothens-last-encounter-with-police/ [https://perma.cc/J2WM-NPJZ]. ↑

  6. May, supra note 1. ↑

  7. Herbert & Santana, supra note 3; May, supra note 2. ↑

  8. Caddo Coroner: McGlothen’s Death Natural, Possibly Preventable, KSLA (June 9, 2020, 9:41 AM), https://www.ksla.com/2020/06/09/caddo-coroner-mcglothens-death-natural-possibly-preventable/ [https://perma.cc/QU2Q-25ZP]. In September 2020, four officers were charged with negligent homicide and malfeasance after Thoma “determined that Mr. McGlothen’s death ‘was preventable’ because the officers should have known he needed medical treatment.” Michael Levenson, Four Louisiana Officers Charged in Death of Black Man with Mental Illness, N.Y. Times, (Sept. 18, 2020), https://www.nytimes.com/2020/‌09/18/us/shreveport-police-officers-charged-death.html [https://perma.cc/X9D2-3FQ3]. ↑

  9. May, supra note 2. ↑

  10. See, e.g., Radley Balko & Tucker Carrington, The Cadaver King and the Country Dentist, at xiv, xxii (2018) (noting that a single medical examiner testified in approximately 80% of Mississippi’s homicide cases over almost twenty years); Nigel McCrery, Silent Witnesses: The Often Gruesome but Always Fascinating History of Forensic Science, at xxiii (2014) (describing the impact of DNA testing on criminal adjudication around the world); Douglas Starr, The Killer of Little Shepherds: A True Crime Story and the Birth of Forensic Science 11–12 (2010) (explaining the origin of modern forensic science at the turn of the twentieth century). ↑

  11. Osagie K. Obasogie & Anna Zaret, Medical Professionals, Excessive Force, and the Fourth Amendment, 109 Calif. L. Rev. 1 (2021). ↑

  12. Patty Nieberg, Elijah McClain Case Leads to Scrutiny of Ketamine’s Use During Arrests, Denv. Post (Aug. 22, 2020, 2:31 PM), https://www.denverpost.com/2020/08/22/elijah-mcclain-ketamine-police-arrests/ [https://perma.cc/34SE-PB9R]; see also Gregory Yee, Mount Pleasant Man’s Ketamine-Related Death in Police Custody Under Investigation, Post & Courier (Feb. 28, 2020), https://www.postandcourier.com/news/mount-pleasant-mans-ketamine-related-death-in-police-custody-under-investigation/article_8b07f4de-59ae-11ea-adad-2f0e6f56d779.html [https://perma.cc/3M86-SJSP]; John Croman, Man Files Lawsuit Over Ketamine Injection, KARE (July 14, 2018, 1:35 PM), https://www.kare11.com/article/news/man-files-lawsuit-over-ketamine-injection/89-573408858 [https://perma.cc/G3D4-86QS]. ↑

  13. See infra Subsection III.C.2. ↑

  14. Alessandro Marazzi Sassoon, Excited Delirium: Rare and Deadly Syndrome or a Condition to Excuse Deaths by Police?, Fla. Today (Jan. 30, 2020, 2:52 PM), https://www.floridatoday.com/in-depth/news/2019/10/24/excited-delirium-custody-deaths-gregory-edwards-melbourne-taser/2374304001/ [https://perma.cc/4M2A-5GE3]. ↑

  15. One example where this occurred is the police killing of George Floyd. One officer at the scene, Thomas Lane, described his concern that Floyd might have experienced excited delirium while being restrained (and ultimately strangled to death) by Officer Derek Chauvin. See Steve Eckert & Jeremy Jojola, KARE 11 Investigates: Did Officers Fear George Floyd Had ‘Excited Delirium’?, KARE 11 (Apr. 13, 2021), https://www.kare11.com/article/‌news/investigations/kare-11-investigates-did-officers-fear-george-floyd-had-excited-delirium/89-f7cc01f2-427c-48ab-a4fe-3f414c3c2236. Given the troubling and inaccurate manner that Minneapolis police initially reported the confrontation between police and George Floyd—the headline of the police press release read “Man Dies After Medical Incident During Police Interaction”—excited delirium could have easily become part of the way that Floyd’s death was described, but for video of the incident and public outcry. See Eric Levenson, How Minneapolis Police First Described the Murder of George Floyd, and What We Know Now, CNN (Apr. 21, 2021), https://www.cnn.com/2021/04/21/us/minneapolis-police-george-floyd-death/index.html [https://perma.cc/6TQN-ZTGA]. Indeed, even after the video of Floyd’s murder and social unrest, excited delirium still emerged as a possible explanation of his death during Derek Chauvin’s trial. See Steve Karnowski, Explainer: Why ‘Excited Delirium’ Came Up at Chauvin Trial?, AP News (Apr. 19, 2021), https://apnews.com/article/health-death-of-george-floyd-trials-george-floyd-3b60b3930023a2668e7fc63f903fc3aa. ↑

  16. Press Release, Am. Psychiatric Ass’n, Position Statement on Concerns About Use of the Term ‘Excited Delirium’ and Appropriate Medical Management in Out-of-Hospital Contexts (Dec. 2020), https://www.psychiatry.org/File%20Library/About-APA/Organization‌-Documents-Policies/Policies/Position-Use-of-Term-Excited-Delirium.pdf [https://perma.cc/2HVX-2X3N]. ↑

  17. Press Release, Am. Med. Ass’n, New AMA Policy Opposes ‘Excited Delirium’ Diagnosis (June 14, 2021), https://www.ama-assn.org/press-center/press-releases/new-ama-policy-opposes-excited-delirium-diagnosis [https://perma.cc/T9DP-6XPT]. ↑

  18. Michael de Yoanna & Rae Solomon, Medics in Colorado Dosed 902 People with Ketamine for ‘Excited Delirium’ in 2.5 Years, KUNC (July 21, 2020, 5:35 PM), https://www.kunc.org/news/2020-07-21/medics-in-colorado-dosed-902-people-with-ketamine-for-excited-delirium-in-2-5-years [https://perma.cc/5RUA-ZEJA]. ↑

  19. Lucy Tompkins, Here’s What You Need to Know About Elijah McClain’s Death, N.Y. Times (last updated Oct. 19, 2021), https://www.nytimes.com/article/who-was-elijah-mcclain.html [https://perma.cc/6CTY-S438]. ↑

  20. Id. ↑

  21. John Dickerson, Excited Delirium: The Controversial Syndrome That Can Be Used to Protect Police from Misconduct Charges, 60 Minutes (Dec. 13, 2020), https://www.cbsnews.com/news/excited-delirium-police-custody-george-floyd-60-minutes-2020-12-13/ [https://perma.cc/98HM-799S]. ↑

  22. Brian Maass, Ketamine Dose for Elijah McClain ‘Too Much,’ Says Anesthesiologist, CBS4 Denv. (July 7, 2020, 11:59 PM), https://denver.cbslocal.com/2020/07/07/elijah-mcclain-ketamine-aurora-police-anesthesiologist/ [https://perma.cc/5DR6-TNML] (“Multiple anesthesiologists are questioning the amount of Ketamine, a widely employed sedative, used on Elijah McClain just before he stopped breathing last August, with one doctor saying it was, ‘Too much, twice too much.’”). ↑

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