Thanks to @SwipeWright for calling this story to my attention. A judge has ordered parties to recognize trans persons as female. The parties have refused and now seek the judge’s recusal. Strategically an interesting move. https://twitter.com/nro/status/1259801362629525509

Had they not made that motion they would have been held in contempt.
They might still be held if the recusal is not granted. But then they could appeal the contempt order.

Recently, a similar issue of arose in the Fifth Circuit Court of Appeals (a federal intermediate court). After conviction, a trans prisoner sought to have the name on the court’s order of confinement changed to “Katherine” to indicate the prisoner was female, though male-bodied.

The Department of Justice opposed the request. They argued it was an improper post-trial motion. There are specific grounds on which you can make such a motion. Desiring a name designation change is not one of them.

The district judge denied the motion as proper. The prisoner appealed.

The Fifth Circuit also denied the motion but on different grounds. It held the lower court had no jurisdiction because no law/rule justified a post trial motion on that basis. The opinion so holding also used the male pronoun in referencing the prisoner. http://www.ca5.uscourts.gov/opinions/pub/19/19-40016-CR0.pdf

Lambda Legal has since filed an amicus brief in the 5th Circuit asking for reconsideration and a change in the references in the opinion. But Lambda was not a party to the case and cannot make a motion. https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/jett_tx_20200319_amicus-brief.pdf

The judge, Kyle Duncan, was recently appointed. His nomination was opposed by those who claimed, based on his work as a lawyer, that he was anti-LGBT.

Some background here. After groups were consistently losing battles on various LGB/trans-related issues in the US, around 2008, there was a change of strategy. They decided they would “educate” judges.

Under the guise of neutrality, partisan advocacy groups were able to get judges to participate in so-called educational sessions.

Teaching judges about trans people isn’t a bad idea. But the groups also taught fake legal precepts as fact. I have seen people just blatantly misrepresent law in books, etc.

Some of these sessions covered LGB issues as well.

Judges participated in the sessions because it appealed to two core principles judges tend to like. One, it was informational and they like that. Two, it also heightened their sensitivities and they liked that. Plus sometimes corporations or others paid for the sessions.

In many cases, judges treated these sessions like continuing legal education courses. Now of course, bar groups had been conducting such courses for long time. But the partisan groups felt these groups were not progressive enough.

They felt these traditional bar groups were reiterating the same old rules that had inhibited the advancement of rights for T and also LGB people. And on some things, I think the education was helpful. But it was in some respects quite partisan.

The educational effort was widespread. So you would find so “educated” judges expressing as “fact” propositions that were debatable under law and debated in US society.

Now when this judge says that it is proper to refer to the trans person in court as female, he just takes that as a truth. He doesn’t consider other arguments based on say context, religion, women’s rights or the need to recognize sex v gender id in THIS case.

I think that a judge can stop a litigant from calling a transwoman a “man” in a courtroom. There are other words one can use. But he can’t make a litigant call a trans woman a woman or a female.

I don’t think he can stop the litigant from saying a person is male-bodied or even designated a man or presented as a man. He can’t stop the litigant from saying “our clients consider x to be a man” if relevant to the argument.

Thank God for the First Amendment to the US constitution. It protects free speech. It protects the right to petition the government/courts for redress of grievances. And so I would say these litigants who resist an imposed vocabulary are on solid ground.

Thank you Brits!! (Don’t get mad at me Brits, but you know the Americans were thinking about George III trying to silence those ungrateful Americans!) But to be fair, Americans borrowed a lot of their freedom principles from the Europeans who hated tyranny.

The other tactic was shutting down dissent on campuses, in scholarship, newspapers etc. Groups began to appoint students as campus ambassadors to spread their gospel. They began to fill libraries with the books that favored their viewpoints-and exclude those that did not.

And you know they tried to shape scholarship by excluding scientifically or historically valid viewpoints as “hate.”

This power to exclude arose out of discrimination. To be clear, a segment of LGBT persons have always benefitted from race & sex discrimination.

That benefit has historically placed in positions of power the white, the male or male-bodied above the female, the darker skinned, the poor.

This point has been true inside and outside of the LGBT community.

The press participated in this education. The press was told what to say and how to say it. These groups produced media books.Those who could not go along with the program were shipped out or targeted for extinction. Corporations would pull ads.

If you have accesd to capital and power, you can force people to do your bidding. But it won’t last.

Conservative groups began to adopt their own rank partisan ship in their educational efforts. Then the left began to complain that judges were participating in partisan conferences. (The right has been partisan a long time but they moved even further right.)

So prior to now there has been years of this “educational” stuff. And the people who ran the progressive stuff would say that they were just reversing the long history of partisan teaching before.

But there is a reason that women and blacks could not in so short a time pull off the same kind of thing as has occurred with white male lgbt rights. They had no section of their group in positions of power to do it. Historically, they were largely blocked as identifiable.

As recently as 2017, the author of the theory I debunked in my article on how bathrooms became separarated by sex (pinned tweet) presented his views as fact to the Tenth Circuit.

So I guess I should say that this judge is trying to be sensitive. He is applying what he learned absent lessons that taught that maybe what he is doing is harmful to women or that context matters. So I give him a little break—but not much.