UNITED STATES OF AMERICA, Plaintiff - Appellee v. NORMAN VARNER, Defendant - Appellant
No. 19-40016
United States Court of Appeals for the Fifth Circuit
January 15, 2020
Summary Calendar
STUART KYLE DUNCAN, Circuit Judge
Appeal from the United States District Court for the Eastern District of Texas
Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
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 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
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. 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
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 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
Nor was Varner‘s request authorized under
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.
First, no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric2 litigants with
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,
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 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
| 1 | 2 | 3 | 4 | 5 |
|---|---|---|---|---|
| (f)ae | (f)aer | (f)aer | (f)aers | (f)aerself |
| e/ey | em | eir | eirs | eirself |
| he | him | his | his | himself |
| per | per | pers | pers | perself |
| she | her | her | hers | herself |
| they | them | their | theirs | themself |
| ve | ver | vis | vis | verself |
| xe | xem | xyr | xyrs | xemself |
| ze/zie | hir | hir | hirs | hirself |
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 (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
***
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.
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.
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 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
Unlike the defendant‘s motion in Early,
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:
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
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 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 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.