LGBTQ advocates rally in support of transgender people on the steps of New York City Hall on October 24, 2018.
Drew Angerer/Getty Images
The nation’s most powerful anti-LGBTQ law firm took the extraordinary step on Friday of demanding the recusal of a federal judge—because he insisted that its attorneys respect transgender people’s gender identity in court proceedings.
That firm, Alliance Defending Freedom, is devoted to attacking the rights of LGBTQ people in court. In February, it filed a lawsuit challenging Connecticut’s policy of allowing trans athletes to compete with cisgender students. On behalf of three cisgender student athletes, ADF alleged a violation of Title IX, which bars sex discrimination in federally funded educational programs. Per ADF policy, its attorneys called transgender girls “male athletes” and referred to them with male pronouns. In April, U.S. District Judge Robert N. Chatigny, the Bill Clinton appointee overseeing the case, ordered ADF lawyers to say “transgender females” instead in an effort to preserve “respectful, humane, intelligent, civil discourse.” In response, ADF accused Chatigny of displaying an “appearance of bias,” asserted a violation of its First Amendment rights, and asked the judge to disqualify himself.
To see how ridiculous ADF’s request is, take a look at Chatigny’s actual comments and the context in which they were made. Chatigny was holding a teleconference with ADF and the ACLU, which intervened on behalf of transgender student athletes. ADF attorney Roger Greenwood Brooks kept calling these students “males” even though they identify as female. Chatigny told Brooks:
I don’t think we should be referring to the proposed intervenors as “male athletes.” I understand that you prefer to use those words, but they’re very provocative, and I think needlessly so. I don’t think that you surrender any legitimate interest or position if you refer to them as transgender females. That is what the case is about. This isn’t a case involving males who have decided that they want to run in girls’ events. This is a case about girls who say that transgender girls should not be allowed to run in girls’ events.
Brooks disagreed, claiming that he could not “comply with that direction consistent with vigorous representation of the position that my clients are putting forward here.” Chatigny further explained:
I’m not asking you to refer to these individuals as “females.” I know that you don’t want to do so. What I’m saying is you must refer to them as “transgender females” rather than as “males.” Again, that’s the more accurate terminology, and I think that it fully protects your clients’ legitimate interests. Referring to these individuals as “transgender females” is consistent with science, common practice and perhaps human decency. To refer to them as “males,” period, is not accurate, certainly not as accurate, and I think it’s needlessly provocative; and, for me, civility is a very important value, especially in litigation. …
I don’t want to bully you, but at the same time, I don’t want you to be bullying anybody else. … I certainly don’t want to put civility at risk in this case. Quite the opposite. My goals for this case include, very importantly, the goal of maintaining civil discourse, respectful, humane, intelligent, civil discourse in the course of the case. Nothing more, nothing less.
On Friday, ADF responded to Chatigny’s plea with a motion for disqualification, declaring that the judge’s comments had “destroyed the appearance of impartiality in this proceeding.” (The judge himself can decide whether to recuse, but if he declines, ADF can appeal.) Chatigny’s words, ADF wrote, “would leave an impartial observer gravely concerned that the Court has prejudged the matter, rejected core aspects of Plaintiffs’ case before hearing the evidence and legal arguments, and assumed the role of advocate for the defendants.”
It is not biased or unconstitutional for a judge to demand that all parties treat transgender litigants politely.
ADF is not alone in fighting for the right to misgender people in court. It’s a dehumanizing tactic that conservative judges have latched onto in recent years. Donald Trump appointee Stuart Kyle Duncan, for instance, wrote in January that he would not refer to a transgender woman with female pronouns because doing so could indicate “bias” toward transgender people. ADF cited Duncan’s refusal to respect pronouns as support for their recusal motion. Duncan’s Trump-appointed colleagues on the 5th U.S. Circuit Court of Appeals are also eager to demean transgender people who appear before them. Anti-LGBTQ groups consistently misgender transgender people in court filings and defend teachers who intentionally misgender trans students. In 2017, the Clerk of the Supreme Court chastised several right-wing groups for misgendering a transgender student in their briefs. Despite this rebuke, other judges still refuse to respect transgender litigants.
To ADF, this isn’t just a matter of judicial ethics. Chatigny’s order also violated its attorneys’ constitutional right to free speech, the group claimed, by limiting their ability to present “certain vital theories and ideas” to the court. Moreover, according to ADF, Chatigny violated the plaintiffs’ due process by restricting “zealous advocacy by counsel.” ADF attorneys even invoked Powell v. Alabama, in which the Supreme Court held that due process required Alabama to appoint defense attorneys for nine black men falsely accused of raping two white women.
If ADF’s theory is correct, then Chatigny is far from the only federal judge to commit this transgression. Many judges have used transgender litigant’s preferred pronouns without incident, and some have invited parties follow suit. For instance, in 2019, U.S. District Judge Sharon Johnson Coleman wrote that “the Court would be derelict if it failed to note the defendants’ careless disrespect for the plaintiff’s transgender identity, as reflected through implications that the plaintiff might not actually be transgender and the consistent use of male pronouns to identify the plaintiff. The Court cautions counsel against maintaining a similar tone in future filings.”
It is not biased or unconstitutional for a judge to demand that all parties treat transgender litigants politely. Nor, for that matter, is it a violation of Title IX for Connecticut to treat trans and cisgender athletes equally. Several courts have found that Title IX requires schools to honor transgender students’ gender identities because anti-trans discrimination is a form of sex discrimination. ADF now asserts that Title IX prohibits schools from doing just that. Its position—that schools must engage in sex discrimination to end sex discrimination—is incredibly weak.
The feeble nature of ADF’s argument may help explain why the organization launched this extreme assault on Chatigny’s integrity. Because it lacks a plausible legal claim, it has resorted to impugning the judge, presumably in the hopes of drawing a new one who is more favorable to its case. Neither Chatigny nor his colleagues should reward this cynical stunt.
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