Welcome to the Trump Bench, a series where Slate analyzes a Trump judge’s recent work. At an unusually rapid clip, Trump has so far successfully appointed two Supreme Court justices, 50 appeals court judges, and 133 district court judges during his presidency. Trump judges tend to be different than appointees by past presidents of both parties. Many are quite young, some are openly partisan, others are patently unqualified. The judges will likely be Trump’s most enduring impact on our nation, which is why we are choosing to spotlight their work.
The fourth installment is about Kyle Duncan, a culture warrior who spent his pre-judicial career attacking the rights of same-sex couples and their children, transgender students, women, minority voters, and immigrants.
The Judge: Stuart Kyle Duncan of the 5th U.S. Circuit Court of Appeals. Duncan was confirmed to a lifetime appointment on the 5th Circuit on April 24, 2018; today, he is one of five Donald Trump appointees on that court. He previously served in both the Texas and Louisiana attorney general’s offices. Like most of Donald Trump’s appeals court nominees, Duncan is a member of the Federalist Society.
The Decision: Duncan cut his teeth defending policies that discriminate against transgender schoolchildren. He seemed to draw upon that experience in a transphobic opinion issued last Wednesday.
That opinion, U.S. v. Varner, involved a transgender inmate’s modest request to change her name on several court documents. These documents identified her as Norman Keith Varner, but she has since transitioned and legally changed her name to Kathrine Nicole Jett. Without the aid of an attorney, Jett asked the 5th Circuit to order a revision of these old court documents to reflect her new name and true gender identity. “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,” she wrote. “I am a woman—can I not be referred to as one?”
In a 2–1 decision, Duncan denied both of Jett’s requests. He first refused to revise her name on court documents on technical grounds, finding no authorization under federal law to consider the motion. Then he embarked upon a five-page screed that willfully misinterpreted Jett’s entreaty to be “referred to as” a woman. Duncan claimed that Jett demanded an order forcing the lower court and the government to use female pronouns under threat of contempt. (In reality, as Judge James L. Dennis explained in dissent, Jett had merely asked 5th Circuit to respect her gender identity by using the correct pronouns.)
Duncan did acknowledge that judges have discretion to use the right pronouns, but refused to do so here, for the most trollish of reasons. He wrote that federal courts must sometimes decide “hotly-debated issues of sex and gender identity,” and that using a transgender litigant’s preferred pronoun may “unintentionally convey” a judge’s “tacit approval of the litigant’s underlying legal position.” The Code of Conduct compels judges to maintain “the integrity and impartiality of the judiciary,” Duncan noted, and using preferred pronouns could indicate “bias” toward transgender people.
As legal analyst Cristian Farias has pointed out, that same code also compels judges to be “patient, dignified, respectful, and courteous to litigants.” Duncan simply ignored that rule. Moreover, as Vox’s Ian Millhiser wrote, Duncan does not actually maintain impartiality by using the wrong gender pronouns. He reveals that he has taken a side against transgender litigants.
By misreading Jett’s plea, Duncan also gave himself an excuse to disparage transgender people and question the validity of their identities. He threw up his hands at the supposed complexity of trans pronouns, pointing to an LGBTQ+ university resource center’s “pronoun usage guide” that included uncommon variations like “ze” and “xyr.” And he cited a Harvard Law Review article by Jessica A. Clarke (while misspelling her name) describing “unfamiliar pronouns, such as ze.” (The article’s next sentence warns: “Issues related to pronouns are often distorted and politicized.”)
“We decline,” Duncan concluded, “to enlist the federal judiciary” in the “quixotic undertaking” of using preferred pronouns.
The Precedent: Duncan’s assertion that courts cannot use transgender people’s preferred pronouns without entering a thicket of exotic neologisms is demonstrably false. Plenty of judges have used transgender litigants’ preferred pronouns without any trouble at all. And, notably, when anti-trans groups misgendered a trans plaintiff in their briefs, the clerk of the Supreme Court reprimanded them and directed them to use the correct pronoun.
At most, U.S. v. Varner confirms that the 5th Circuit will continue to intentionally misgender trans litigants. Judge James Ho—another Trump appointee—already misgendered a trans inmate in a malicious 2019 decision that allowed Texas to deny gender affirmation surgery to prisoners. Ho relied upon his apparent hostility toward transgender people to reject the scientific consensus in support of this treatment for certain individuals experiencing gender dysphoria.
The Record: Before joining the bench, Duncan devoted his career to an array of reactionary causes. He represented a school district that sought to bar a transgender student from using the correct bathroom on campus and opposed marriage equality at the Supreme Court. He tried to revoke a lesbian mother’s parental rights over her adopted child and successfully challenged a married same-sex couple’s legal parentage over their adopted child. Duncan has also sought to curtail workers’ access to contraception, let states regulate abortion clinics out of existence, permit Republicans to enact racist restrictions on the franchise, permit deportation of undocumented parents of U.S. citizens, and bar any opportunity of release for individuals sentenced to life as juveniles.
Duncan’s record on the 5th Circuit so far suggests that his hardline views have not budged. He cast the decisive vote halting reforms to the unjust bail system in Harris County, Texas, which a lower court found discriminated against poor people and violated their constitutional rights. He also voted to grant qualified immunity to police officers who shot a suicidal teenager—before the teenager had even seen the officers, and, allegedly, without warning him to disarm. Duncan voted against reconsidering a panel opinion eviscerating the Fair Housing Act. Yet he voted to abolish the independence of an agency that regulates mortgage giants Fannie Mae and Freddie Mack.
The vote: Duncan’s blandly evasive performance before the Senate Judiciary Committee failed to persuade Democrats that he would join the judiciary with an open mind. He was confirmed by a vote of 50–47, with every Republican present voting in his favor (including Susan Collins), and every Democrat present except Joe Manchin voting in opposition. Duncan is one of five Trump appointees on the 5th Circuit. This quintet has joined the court’s existing far-right bloc to create a radically conservative majority that implements the jurisprudence of Trumpism to devastating effect.
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