United States v. Norman Varner ( 2020 )

Case: 19-40016 Document: 00515272571 Page: 1 Date Filed: 01/15/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-40016
Fifth Circuit
FILED
Summary Calendar January 15, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
NORMAN VARNER,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
Norman Varner, federal prisoner # 18479-078, appeals the denial of his
motion to change the name on his judgment of confinement to “Kathrine Nicole
Jett.” The district court denied the motion as meritless. We conclude that the
district court lacked jurisdiction to entertain the motion and so vacate the
court’s judgment. In conjunction with his appeal, Varner also moves that he be
addressed with female pronouns. We will deny that motion.
I.
In 2012, Varner pled guilty to one count of attempted receipt of child
pornography and was sentenced to 180 months in prison, to be followed by 15
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years supervised release. Varner’s federal sentence was influenced by his
previous convictions at the state level for possession of child pornography and
failure to register as a sex offender. In 2018, Varner wrote a letter to the
district court requesting that the name on his judgment of committal (“Norman
Keith Varner”) be changed to reflect his “new legal name of Kathrine Nicole
Jett.” Varner’s letter explained that he “ca[me] out as a transgender woman”
in 2015, began “hormone replacement therapy” shortly after, and planned to
have “gender reassignment surgery in the near future” in order to “finally
become fully female.” Attached to Varner’s letter was a certified copy of a 2018
order from a Kentucky state court changing Varner’s name.
The government opposed Varner’s request, arguing principally that
Varner alleged no defect in the original judgment and that a “new preferred
name” was not a basis for amending a judgment. See Fed. R. Crim. P. 36 (upon
notice, court may “correct a clerical error in a judgment, order, or other part of
the record”). The government also pointed out that, under Bureau of Prisons
(“BOP”) regulations, Varner would be able to use his preferred name as a
secondary name or alias. See BOP Policy No. 5800.15, § 402(d). Finally, the
government argued that Varner’s name change was, in any event, improperly
obtained under Kentucky law: Varner swore in his petition that he was then a
resident of “Covington, Kentucky,” when, in fact, he was at the time
incarcerated at a federal facility in Waymart, Pennsylvania.
The district court construed Varner’s letter as a motion to correct his
judgment of committal and denied it on the merits. The court reasoned that a
“new, preferred name is not a legally viable basis to amend the previously
entered Judgment,” and, moreover, that inmates have no constitutional right
to have prison records reflect a new name. Order at 2 (citing United States v.
Baker, 415 F.3d 1273, 1274 (11th Cir. 2005); United States v. White, 490 F.
App’x 979, 982 (10th Cir. 2012); United States v. Jordan, 162 F.3d 93 (5th Cir.
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1998)). Additionally, the court concluded that Varner “does not appear to have
legally changed his name” under Kentucky law because his prison records
reflected that he was not a resident of Kentucky when he petitioned for a name
change. Order at 2–3 (citing Ky. Rev. Stat. § 401.010). Finally, the court noted
that the relief Varner sought is “achievable without amending the Judgment.”
Id. at 3. As the court explained, BOP regulations allow Varner to use “Kathrine
Nicole Jett” as a secondary name and also authorize BOP staff “to use either
gender-neutral or an inmate’s requested gender-specific pronoun or salutation
when interacting with transgender inmates.” Id. (citing BOP Policy No.
5800.15, § 402(d); BOP Policy No. 5200.04, § 11).
Varner appealed the district court’s denial of his motion to amend the
judgment, which we review de novo. See United States v. Douglas, 696 F. App’x
666, 668 (5th Cir. 2017) (per curiam) (citing United States v. Ramirez-Gonzalez,
840 F.3d 240, 246 (5th Cir. 2016)); see also United States v. Davis, 841 F.3d
1253, 1261 (11th Cir. 2016). Along with his appeal, Varner has filed various
motions in our court, including a “motion to use female pronouns when
addressing Appellant” and motions to “submit [his] photograph into evidence”
or to “appear . . . either by phone, video-conference, or in person.”
II.
A.
While the district court’s reasons are well-taken, we conclude that
Varner’s request to change the name on his judgment of commitment was “an
unauthorized motion which the district court was without jurisdiction to
entertain.” United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Our
jurisdiction is predicated upon the valid jurisdiction of the district court, and
so we must examine the basis for the district court’s jurisdiction. United States
v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Mosley v. Crosby, 813 F.2d 659 (5th
Cir. 1987). “Absent jurisdiction conferred by statute, district courts lack power
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to consider claims.” Veldhoen v. United States Coast Guard, 35 F.3d 222, 225
(5th Cir. 1994). “If the district court lacked jurisdiction, ‘[o]ur jurisdiction
extends not to the merits but merely for the purpose of correcting the error of
the lower court in entertaining the suit.’” Key, 205 F.3d at 774 (quoting New
York Life Ins. Co. v. Deshotel, 142 F.3d 873, 882 (5th Cir. 1998)). We conclude
that Varner’s motion was unauthorized by any statute and that the district
court therefore lacked jurisdiction to entertain it.
Varner’s letter request does not fall into any of the recognized categories
of postconviction motions. Although a district court has authority to correct a
sentence under Federal Rule of Criminal Procedure 35 and to correct clerical
mistakes in judgments and orders under Federal Rule of Criminal Procedure
36, Varner’s request does not fall under either rule. The request did not
implicate Rule 35 because it was neither made “[w]ithin 14 days after
sentencing,” nor was it made by the government. See Fed. R. Crim. P. 35(a)
(allowing court to correct “arithmetical, technical, or other clear error” in
sentence “[w]ithin 14 days after sentencing”); id. 35(b)(1), (2) (allowing
sentence reduction on certain grounds “[u]pon the government’s motion”). Nor
did the request implicate Rule 36 because it did not seek correction of a “clerical
error in [the] judgment.” Fed. R. Crim. P. 36. A clerical error occurs “when the
court intended one thing but by merely clerical mistake or oversight did
another.” United States v. Buendia-Rangel, 553 F.3d 378, 379 (5th Cir. 2008);
see also Ramirez-Gonzalez, 840 F.3d at 247 (Rule 36 is a “limited tool[ ] meant
only to correct mindless and mechanistic mistakes”) (internal quotation marks
and citations omitted). A name change obtained six years after entry of
judgment is not a clerical error within the meaning of Rule 36.
Nor was Varner’s request authorized under 18 U.S.C. § 3582(c)(2)
because it was not based upon an amendment to the Sentencing Guidelines.
See § 3582(c)(2) (permitting court to modify term of imprisonment “based on a
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sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. [§] 994(o)”). Additionally, the district court
could not construe the request as a motion arising under 18 U.S.C. § 3742,
which applies only to direct appeals. See Early, 27 F.3d at 142 (explaining that
relief under § 3742 is “available . . . only upon direct appeal of a sentence or
conviction”). Finally, the request did not arise under 28 U.S.C. § 2255 because
Varner did not challenge the validity of his conviction or sentence. See United
States v. Segler, 37 F.3d 1131, 1137 (5th Cir. 1994) (explaining “Congress
. . . meant to limit the types of claims cognizable under § 2255 to claims
relating to unlawful custody”). In sum, Varner’s request to change the name
on his judgment was an unauthorized motion that the district court lacked
jurisdiction to entertain.
B.
We next consider Varner’s motion for the “use [of] female pronouns when
addressing [Varner].” We understand Varner’s motion as seeking, at a
minimum, to require the district court and the government to refer to Varner
with female instead of male pronouns. 1 Varner cites no legal authority
supporting this request. Instead, Varner’s motion simply states that “I am a
woman” and argues that failure to refer to him with female pronouns “leads
me to feel that I am being discriminated against based on my gender identity.”
Varner’s reply brief elaborates that “[r]eferring to me simply as a male and
with male pronouns based solely on my biological body makes me feel very
uneasy and disrespected.” We deny the motion for the following reasons.
1The district court’s order refers to Varner with male pronouns, as does the
government’s letter brief.
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First, no authority supports the proposition that we may require
litigants, judges, court personnel, or anyone else to refer to gender-dysphoric 2
litigants with pronouns matching their subjective gender identity. Federal
courts sometimes choose to refer to gender-dysphoric parties by their preferred
pronouns. 3 On this issue, our court has gone both ways. Compare Rush v.
Parham, 625 F.2d 1150, 1153 n.2 (5th Cir. 1980) (adopting “for this opinion”
2 “Gender dysphoria” refers to a condition where persons perceive a “marked
incongruence” between their birth sex and “their experienced / expressed gender.” See Gibson
v. Collier, 920 F.3d 212, 217 (5th Cir. 2019) (citing American Psychiatric Ass’n, Diagnostic
and Statistical Manual of Mental Disorders (5th ed. 2013) (“DSM-5”), at 452) (cleaned up).
Someone suffering from this condition may identify with the opposite sex, but the condition
“may include a desire to be of an alternative gender” beyond the “binary” of male and female.
DSM-5 at 453. The condition affects a tiny fraction of people. See DSM-5 at 454 (estimating
prevalence for adult males from “0.0005% to 0.014%” and for adult females from “0.002% to
0.003%”). When it affects children, the condition often does not persist into adolescence or
adulthood. See id. at 455 (estimating persistence for boys from “2.2% to 30%” and for girls
from “12% to 50%”). Finally, “gender dysphoria” is to be distinguished from a “disorder of sex
development,” in which the development of male or female sex organs is affected by genetic
or hormonal factors. See id. at 451, 456.
3 See, e.g., Farmer v. Haas, 990 F.2d 319, 320 (7th Cir. 1993) (“[T]he defendants say
‘he,’ but Farmer prefers the female pronoun and we shall respect her preference.”); Farmer
v. Circuit Court of Maryland for Baltimore Cty., 31 F.3d 219, 220 n.1 (4th Cir. 1994) (“This
opinion, in accord with Farmer’s preference, will use feminine pronouns.”); Murray v. U.S.
Bureau of Prisons, 106 F.3d 401 n.1 (6th Cir. 1997) (“Murray uses the feminine pronoun to
refer to herself. Although the government in its brief used the masculine pronoun, for
purposes of this opinion we will follow Murray’s usage.”); Schwenk v. Hartford, 204 F.3d 1187,
1192 (9th Cir. 2000) (“In using the feminine rather than the masculine designation when
referring to Schwenk, we follow the convention of other judicial decisions involving male-to-
female transsexuals which refer to the transsexual individual by the female pronoun.”);
Cuoco v. Moritsugu, 222 F.3d 99, 103, 103 n.1 (2d Cir. 2000) (“We . . . refer to the plaintiff
using female pronouns” because “[s]he [is] a preoperative male to female transsexual.”);
Smith v. Rasmussen, 249 F.3d 755, 757 (8th Cir. 2001) (“As did the parties during the
proceedings in the district court, we will refer to Smith, in accordance with his preference, by
using masculine pronouns.”); Kosilek v. Spencer, 740 F.3d 733, 737 (1st Cir. 2014) (“We will
refer to Kosilek as her preferred gender of female, using feminine pronouns.”); Pinson v.
Warden Allenwood USP, 711 F. App’x 79, 80 (3d Cir. 2018) (“Because Pinson has referred to
herself using feminine pronouns throughout this litigation, we will follow her example.”); but
see Jeune v. U.S. Atty. Gen., 810 F.3d 792, 796 n.1 (11th Cir. 2016) (despite petitioner’s use
of “feminine pronouns in referring to himself on appeal,” using “masculine pronouns” given
that petitioner previously “identified as a male, and the immigration judge and BIA so
referred to him, using masculine pronouns”).
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the “convention” in “medical literature” of using “feminine pronouns . . . to
describe a transsexual with a male biological gender”), with Gibson, 920 F.3d
at 217 n.2 (using “male pronouns” to refer to gender-dysphoric prisoner who
was “born male” but has “lived as a female since the age of 15”); see also Praylor
v. Tex. Dep’t of Crim. Justice, 430 F.3d 1208, 1208–09 (5th Cir. 2005) (per
curiam) (using male pronouns to refer to “transsexual[ ]” inmate who sought
injunction requiring prison “to provide him with hormone therapy and
brassieres”). But the courts that have followed this “convention,” Schwenk, 204
F.3d at 1192, have done so purely as a courtesy to parties. See, e.g., Farmer v.
Haas, 990 F.2d at 320 (using female pronouns to “respect [petitioner’s]
preference”). None has adopted the practice as a matter of binding precedent,
and none has purported to obligate litigants or others to follow the practice.
Varner’s motion in this case is particularly unfounded. While conceding
that “biological[ly]” he is male, Varner argues female pronouns are nonetheless
required to prevent “discriminat[ion]” based on his female “gender identity.”
But Varner identifies no federal statute or rule requiring courts or other
parties to judicial proceedings to use pronouns according to a litigant’s gender
identity. Congress knows precisely how to legislate with respect to gender
identity discrimination, because it has done so in specific statutes. See Wittmer
v. Phillips 66 Co., 915 F.3d 328, 338 (5th Cir. 2019) (Ho, J., concurring) (citing
Hively v. Ivy Tech Comm. Coll. of Indiana, 853 F.3d 339, 363–64 (7th Cir. 2017)
(Sykes, J., dissenting)) (observing that “both Congress and various state
legislatures have expressly prohibited . . . gender identity discrimination by
using the term[ ] . . . ‘gender identity’ discrimination”). As Judge Sykes pointed
out in her Hively dissent, Congress has expressly proscribed gender identity
discrimination in laws such as the Violence Against Women Act, 34 U.S.C.
§ 12291(b)(13)(A), the federal Hate Crimes Act, 18 U.S.C. § 249(a)(2)(A), and
elsewhere. See id. at 363–64 (citing 42 U.S.C. § 3716(a)(1)(C); 20 U.S.C.
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§ 1092(f)(1)(F)(ii); 42 U.S.C. § 294e-1(b)(2)). But Congress has said nothing to
prohibit courts from referring to litigants according to their biological sex,
rather than according to their subjective gender identity.
Second, if a court were to compel the use of particular pronouns at the
invitation of litigants, it could raise delicate questions about judicial
impartiality. Federal judges should always seek to promote confidence that
they will dispense evenhanded justice. See Canon 2(A), Code of Conduct for
United States Judges (requiring judges to “act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary”).
At its core, this judicial impartiality is “the lack of bias for or against either
party to the proceeding,” which “assures equal application of the law.” Repub.
Party of Minn. v. White, 536 U.S. 765, 775–76 (1992) (cleaned up); see also, e.g.,
Bunton v. Quarterman, 524 F.3d 664, 672 (5th Cir. 2008) (explaining that
defendants’ “right to a fair trial” is in part “fulfilled by a judicial officer who
impartially presides over the trial”) (citing Bracy v. Gramley, 520 U.S. 899,
904–05 (1997)). Increasingly, federal courts today are asked to decide cases
that turn on hotly-debated issues of sex and gender identity. See, e.g., Doe v.
Boyertown Area Sch. Dist., 897 F.3d 518 (3d Cir. 2018), cert. denied, 139 S. Ct.
2636 (2019) (evaluating school district policy allowing students to use
bathrooms and locker rooms corresponding to their gender identity instead of
their sex); Adams by & through Kasper v. Sch. Bd. of St. Johns Cty., Fla., 318
F. Supp. 3d 1293, 1296 (M.D. Fla. 2018) (stating that “what this case is about”
is “whether Drew Adams is a boy”). In cases like these, a court may have the
most benign motives in honoring a party’s request to be addressed with
pronouns matching his “deeply felt, inherent sense of [his] gender.” Edmo v.
Corizon, Inc., 935 F.3d 757, 768 (9th Cir. 2019) (cleaned up). Yet in doing so,
the court may unintentionally convey its tacit approval of the litigant’s
underlying legal position. See, e.g., United States v. Candelaria-Gonzalez, 547
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F.2d 291, 297 (5th Cir. 1977) (observing that a trial judge “must make every
effort to preserve the appearance of strict impartiality,” including by
“exhibit[ing] neutrality in his language”). Even this appearance of bias,
whether real or not, should be avoided.
Third, ordering use of a litigant’s preferred pronouns may well turn out
to be more complex than at first it might appear. It oversimplifies matters to
say that gender dysphoric people merely prefer pronouns opposite from their
birth sex—“her” instead of “his,” or “his” instead of “her.” In reality, a dysphoric
person’s “[e]xperienced gender may include alternative gender identities
beyond binary stereotypes.” DSM-5, at 453; see also, e.g., Dylan Vade,
Expanding Gender and Expanding the Law: Toward a Social and Legal
Conceptualization of Gender that Is More Inclusive of Transgender People, 11
Mich. J. Gender & L. 253, 261 (2005) (positing that gender is not binary but
rather a three-dimensional “galaxy”). Given that, one university has created
this widely-circulated pronoun usage guide for gender-dysphoric persons:
Pronouns – A How To Guide, LGBTQ+ Resource Center, University of
Wisconsin-Milwaukee, https://uwm.edu/lgbtrc/support/gender-pronouns/; see
also Jessica A. Clark, They, Them, and Theirs, 132 Harv. L. Rev. 894, 957
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(2019) (explaining “[s]ome transgender people may request . . . more
unfamiliar pronouns, such as ze (pronounced ‘zee’) and hir (pronounced
‘hear’)).” If a court orders one litigant referred to as “her” (instead of “him”),
then the court can hardly refuse when the next litigant moves to be referred to
as “xemself” (instead of “himself”). Deploying such neologisms could hinder
communication among the parties and the court. And presumably the court’s
order, if disobeyed, would be enforceable through its contempt power. See
Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995) (“A party
commits contempt when he violates a definite and specific order of the court
requiring him to perform or refrain from performing a particular act or acts
with knowledge of the court's order.”); see also 18 U.S.C. § 401. When local
governments have sought to enforce pronoun usage, they have had to make
refined distinctions based on matters such as the types of allowable pronouns
and the intent of the “misgendering” offender. See Clark, 132 Harv. L. Rev. at
958–59 (discussing New York City regulation prohibiting “intentional or
repeated refusal” to use pronouns including “them/them/theirs or ze/hir” after
person has “made clear” his preferred pronouns). 4 Courts would have to do the
same. We decline to enlist the federal judiciary in this quixotic undertaking.
***
4 See also NYC Commission on Human Rights, Legal Enforcement Guidance on
Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3 (2002); N.Y.C.
Admin. Code § 8-102(23), 4-5 (2015) https://www1.nyc.gov/assets/cchr/downloads/pdf/
publications/GenderID_InterpretiveGuide_2015.pdf [https://perma.cc/C994-QAMV]; D.C.
Mun. Regs. tit. 4, § 808.2(a) (2017) (making evidence of “unlawful harassment and hostile
environment,” inter alia, “[d]eliberately misusing an individual’s preferred name form of
address or gender-related pronoun,” in light of the “totality of the circumstances . . . including
the nature, frequency, and severity of the behavior, [and] whether it is physically threatening
or humiliating, or a mere offensive utterance”).
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We VACATE the district court’s judgment. Varner’s motion to require
use of female pronouns, to submit a photograph, and to appear are DENIED.
Varner’s motion to file an out-of-time reply brief is GRANTED.
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JAMES L. DENNIS, Circuit Judge, dissenting.
I respectfully dissent. In my view, the majority errs in (1) deciding that
the district court lacked jurisdiction to entertain and deny Varner’s motion
under Rule 36; (2) overbroadly construing Varner’s motion in this court seeking
the use of feminine pronouns; and (3) denying Varner’s request to refer to her
using female pronouns.
I.
The majority errs in concluding that the district court did not have
jurisdiction to consider and rule on Varner’s pro-se motion to amend the
judgment of conviction to recognize her change of name. Federal Rule of
Criminal Procedure 36 allows the court, at any time, to correct “a clerical error
in a judgment, order, or other part of the record, or correct an error in the
record arising from oversight or omission.” FED. R. CRIM. PROC. 36. The
district court explained that the name change, which occurred several years
after the finality of the judgment, did not constitute a clerical error in that
judgment that could be corrected under Federal Rule of Criminal Procedure 36
and that Varner’s motion did not suggest any other rule or statute under which
the name change amendment could be made. The majority determines that
because Varner’s request to amend the judgment of conviction fails on the
merits under Rule 36, the district court lacked jurisdiction to entertain her
motion. I disagree.
We have repeatedly denied relief under Rule 36 when the motion failed
on the merits without questioning the district court’s jurisdiction to entertain
the motion. See United States v. Ramirez-Gonzalez, 840 F.3d 240, 247 (5th Cir.
2016) (affirming district court’s denial of defendant’s Rule 36 motion because
“there is no error to be corrected”); United States v. Buendia-Rangel, 553 F.3d
378, 379 (5th Cir. 2008) (declining defendant’s Rule 36 motion because “[w]e
find no clerical error in the judgment below”); United States v. Slanina, 359
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F.3d 356, 357 (5th Cir. 2004) (affirming district court’s denial of defendant’s
Rule 36 motion because defendant “has not shown that the discrepancy
between the orally imposed sentence and the written judgment is a clerical
mistake or oversight which the district court may correct pursuant to Rule 36”).
Moreover, we have evaluated prisoners’ motions to change their names in the
judgment of conviction, again without questioning the district court’s
jurisdiction. See United States v. Smith, 520 F. App’x 248, 249 (5th Cir. 2013)
(“[W]e find no error in the district court’s denial of the motion to change Smith’s
committed name.”); United States v. Jordan, No. 98-10287, 1998 WL 770660,
at *1 (5th Cir. Oct. 14, 1998).
The cases cited by the majority as authority for its conclusion that the
district court lacked jurisdiction to entertain Varner’s motion are inapposite
here. For example, in United States v. Early, 27 F.3d 140, 141 (5th Cir. 1994),
the defendant appealed the district court’s denial of his motion for a reduction
of his sentence, arguing that this court had jurisdiction under 18 U.S.C. §
3742(a). We found that § 3742 provided no jurisdictional basis for Early’s
motion because “[t]he provisions for modification of a sentence under § 3742
are available to a defendant only upon direct appeal of a sentence or
conviction,” and Early did not file a notice of appeal from final judgment. Id.
at 142. We also evaluated other statutes and determined that none provided
a jurisdictional basis for Early’s motion to reduce his sentence. Id. at 141-42.
Unlike the defendant’s motion in Early, Federal Rule of Criminal
Procedure 36 provides the jurisdictional basis for Varner’s motion. The rule
plainly provides a court with authority to, at any time, correct a clerical error
in its judgment. See FED. R. CRIM. P. 36. This necessarily recognizes a court’s
authority to entertain motions to ascertain whether there is an error that falls
within the rule’s ambit and therefore must be corrected. I have found no cases
interpreting a failure to succeed on the merits under Rule 36 as precluding a
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court’s jurisdiction to entertain the motion. I agree with the majority that “[a]
name change obtained six years after entry of judgment is not a clerical error
within the meaning of Rule 36,” but I believe this is a basis for affirming the
district court’s denial of Varner’s motion, not for concluding that the district
court lacked jurisdiction to consider it. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 89 (1998) (“It is firmly established in our cases that the
absence of a valid (as opposed to arguable) cause of action does not implicate
subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to
adjudicate the case.”). The Supreme Court has cautioned against “drive-by
jurisdictional” rulings similar to the majority’s here, stating:
Judicial opinions, the Second Circuit incisively observed,
“often obscure the issue by stating that the court is dismissing ‘for
lack of jurisdiction’ when some threshold fact has not been
established, without explicitly considering whether the dismissal
should be for lack of subject matter jurisdiction or for failure to
state a claim.” Da Silva [v. Kinsho Int’l Corp.], 229 F.3d [358,] 361
[(2d Cir. 2000)]. We have described such unrefined dispositions as
“drive-by jurisdictional rulings” that should be accorded “no
precedential effect” on the question whether the federal court had
authority to adjudicate the claim in suit. Steel Co., 523 U.S. at 91.
Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006).
I do not question the district court’s jurisdiction to entertain Varner’s
motion to have her judgment of conviction altered to reflect her new name, and
I would affirm that judgment for the reasons stated by the district court.
II.
In addition to her appeal, Varner, a pro-se prisoner, submitted the
following motion to this court:
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Motion to Use Female Pronouns When Addressing Appellant
I am a woman and not referring to me as such leads me to
feel that I am being discriminated against based on my gender
identity. I am a woman—can I not be referred to as one?
The majority concludes that, based on Varner’s two-sentence, pro-se
motion, Varner seeks, “at a minimum, to require the district court and the
government to refer to Varner with female instead of male pronouns.” But
Varner’s request is not so broad. The terms “district court” and “government”
are not mentioned in Varner’s motion. The motion was filed in this court and
is titled “Motion to Use Female Pronouns When Addressing Appellant.”
Varner’s use of the term “appellant” to describe herself leads to the conclusion
that her request is confined to the terms used by this court in this proceeding.
In my view, Varner is simply requesting that this court, in this
proceeding, refer to Varner using her preferred gender pronouns. Not only is
this the most faithful interpretation of her motion given the language she uses,
it is also the narrowest. Because I would affirm the district court for the
reasons it assigns without writing further, I think it is not necessary to use
any pronoun in properly disposing of this appeal.
If it were necessary to write more and use pronouns to refer to Varner, I
would grant Varner the relief she seeks. As the majority notes, though no law
compels granting or denying such a request, many courts and judges adhere to
such requests out of respect for the litigant’s dignity. See, e.g., Kosilek v.
Spencer, 740 F.3d 733, 737 n.3 (1st Cir. 2014) (“We will refer to Kosilek as her
preferred gender of female, using feminine pronouns.”); Cuoco v. Moritsugu,
222 F.3d 99, 103, 103 n.1 (2d Cir. 2000) (“We . . . refer to the plaintiff using
female pronouns” because “[s]he [is] a preoperative male to female
transsexual.”); Pinson v. Warden Allenwood USP, 711 F. App’x 79, 80 n.1 (3d
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Cir. 2018) (“Because Pinson has referred to herself using feminine pronouns
throughout this litigation, we will follow her example.”); Farmer v. Circuit
Court of Md. for Baltimore Cty., 31 F.3d 219, 220 n.1 (4th Cir. 1994) (“This
opinion, in accord with Farmer’s preference, will use feminine pronouns.”);
Murray v. U.S. Bureau of Prisons, 106 F.3d 401, 1997 WL 34677, at *1 n.1 (6th
Cir. 1997) (“Murray uses the feminine pronoun to refer to herself. Although
the government in its brief used the masculine pronoun, for purposes of this
opinion we will follow Murray’s usage.”); Farmer v. Haas, 990 F.2d 319, 320
(7th Cir. 1993) (“[T]he defendants say ‘he,’ but Farmer prefers the female
pronoun and we shall respect her preference.”); Smith v. Rasmussen, 249 F.3d
755, 756 n.2 (8th Cir. 2001) (“As did the parties during the proceedings in the
district court, we will refer to Smith, in accordance with his preference, by
using masculine pronouns.”); Schwenk v. Hartford, 204 F.3d 1187, 1192 n.1
(9th Cir. 2000) (“In using the feminine rather than the masculine designation
when referring to Schwenk, we follow the convention of other judicial decisions
involving male-to-female transsexuals which refer to the transsexual
individual by the female pronoun.”); Qz’etax v. Ortiz, 170 F. App’x 551, 553
(10th Cir. 2006) (“[W]e have no objection to Appellant’s motion for the
continued usage of proper female pronouns and will continue to use them when
referring to her.”).
Ultimately, the majority creates a controversy where there is none by
misinterpreting Varner’s motion as requesting “at a minimum, to require the
district court and the government to refer to Varner with female instead of
male pronouns,” when she in fact simply requests that this court address her
using female pronouns while deciding her appeal. The majority then issues an
advisory opinion on the way it would answer the hypothetical questions that
only it has raised. Such an advisory opinion is inappropriate, unnecessary,
and beyond the purview of federal courts. See F.C.C. v. Pacifica Found., 438
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U.S. 726, 735 (1978) (“[F]ederal courts have never been empowered to issue
advisory opinions.”); Whitehouse Hotel Ltd. P’ship v. Comm’r, 615 F.3d 321,
343 (5th Cir. 2010) (Garza, J., concurring in part) (“Federal courts are only
permitted to rule upon an actual ‘case or controversy,’ and lack jurisdiction to
render merely advisory opinions beyond the rulings necessary to resolve a
dispute.”); In re Michaelson, 511 F.2d 882, 893 (9th Cir. 1975) (“This Court does
not intend to and cannot, issue an advisory opinion on a hypothetical fact
situation.”). The majority’s lengthy opinion is dictum and not binding
precedent in this court. United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th
Cir. 1980) (“We are not bound by dicta, even of our own court.”).
For these reasons, I respectfully but emphatically dissent.
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