Gender Queer In Court

How will a court deal with someone who identifies as non-binary?

Will they force them into the binary boxes?

Pronouns matter: SDNY judge opts for plurals in case with genderqueer plaintiff
Reuters
Alison Frankel
May 1, 2018

(Reuters) - I write often about whether judges should permit plaintiffs to litigate anonymously, so I knew I’d be interested in an April 27 decision by U.S. District Judge Paul Oetken of Manhattan in Doe v. Fedcap Rehabilitation. What I didn’t realize is that the judge’s use of pronouns would turn out to be as interesting – perhaps more interesting – than his analysis of Doe’s privacy rights.

The plaintiff suing Fedcap under the pseudonym Jaime Doe identifies as genderqueer. Doe claims to have experienced discrimination and retaliation based on sexual orientation and gender nonconformity after returning to work at FedCap following breast cancer and a double mastectomy. Doe’s lawyers at Phillips & Associates argued that their client’s already fragile emotional health would be further battered if Doe were required to litigate the case without a pseudonym.

Doe was allowed to file the complaint under a pseudonym, but Fedcap’s lawyers at Epstein Becker & Green subsequently contended that Doe had already revealed confidential information about gender nonconformity in public posts on Facebook and Twitter. Doe, who is no longer employed at Fedcap, was also featured, by name, in two New York Times articles disclosing some of the same sensitive information Doe’s lawyers sought to keep private. “Plaintiff was a ‘surprisingly eager’ participant in the New York Times articles that revealed to the general public the very alleged personal facts that Plaintiff now claims are highly sensitive and confidential,” the Fedcap brief said.

Judge Oetken agreed. The judge said he was sensitive to Doe’s concerns about public filings exposing intimate personal information that could lead to discrimination at Doe’s new job and even bullying of Doe’s school-aged children. But Doe was already identified in one of the Times stories as genderqueer, Judge Oetken said. A photo accompanying the story “specifically illustrated plaintiff’s non-conformance with gender norms,” he wrote. Balancing Doe’s “difficult and uncomfortable” exposure as a publicly-known plaintiff against Fedcap’s diminished leverage if Doe is allowed to litigate pseudonymously, the judge concluded that Doe must use their real name.

So a take-away from this is beware what you post online if you are planning on suing, it can and will be used against you!

Judge Oetken paid Doe the same respect and fairness in his opinion. The judge noted Doe’s preferred pronouns in the second paragraph of his opinion and used “they,” “them” and “their” in place of masculine or feminine pronouns throughout the body of the decision. I will admit, as a self-appointed member of the grammar police, that it was a bit jarring to read a judicial opinion employing plural pronouns to describe a singular plaintiff. (For example: “Plaintiff argues that defendants’ alleged discrimination left plaintiff emotionally scarred, and that outing them on the public record would compound that trauma,” or, “Plaintiff argues that genderqueer individuals suffer disproportionately from discrimination, and that, if outed, plaintiff would be at further risk of discrimination by employees at their new job.”) I bet it was jarring for Judge Oetken, a former U.S. Supreme Court clerk, to write an opinion that breaks old-school grammar rules. On the other hand, Judge Oetken is a convention-buster: When the U.S. Senate confirmed his appointment in 2011, he was the first openly gay man to become a federal judge.

So legal precedent has been set!

Let’s hope other judges follow through.