A Supreme Court Rebuke Over Use of Proper Pronouns in Transgender Case

By Mark Walsh — March 03, 2017 5 min read
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The clerk of the U.S. Supreme Court has formally admonished two lawyers who wrote friend-of-the-court briefs in support of the Virginia school board in the major case on transgender rights because the cover of the briefs refer to the transgender male student in the case as “her” rather than “him.”

The two filings were among 26 such briefs filed in January in Gloucester County School Board v. G.G. (Case No. 16-273) in support of the board, which is defending its policy that requires transgender students to use the school restrooms and locker rooms that correspond to their “biological gender.” The policy is being challenged by Gavin Grimm, a female-born high school senior who now identifies as male.

One brief at issue was filed on behalf of two groups—the National Organization for Marriage, a group that opposed the legalization of same-sex marriage, and the Center for Constitutional Jurisprudence. The other was filed by the Child Protection Institute and its founder, Judith Reisman, a professor at Liberty University.

Each brief, on its cover page, listed the caption of the case in this way: “Gloucester County School Board v. G.G., by her next friend and mother, Deirdre Grimm.” (Emphasis added, as they say in legal documents, in italics.)

But the “official” caption of the case is “Gloucester County School Board v. G.G., by his next friend and mother, Deirdre Grimm.” (Emphasis added again.)

The caption uses standard language for when a party is a minor and must be represented in court by a parent or other “next friend.” By my search, there are no other references to Grimm as “her” in the body of those briefs.

The use of “her” in the two briefs—all of the other friend-of-the-court briefs filed in support of the school board use “him"—seems to have gone unnoticed until last week, when Mark Joseph Stern of the online magazine Slate inquired about it with the Supreme Court.

The next day, on Feb. 24, the Supreme Court clerk’s office sent identical letters to the attorneys of record for the two briefs that say:

It has come to the attention of this office that the cover of your amicus brief in this case identifies the respondent as “G.G., by her next friend and mother, Deirdre Grimm.” In fact, the caption for the case in this Court, as in the lower courts, identifies the respondent as “G.G., by his Next Friend and Mother, Deirdre Grimm.” (Emphasis added.) Under Rule 34, your cover is to reflect the caption of the case. Please ensure careful compliance with this requirement in this and other cases in the future.

The letters are signed by Clerk Scott S. Harris and one of his staff members.

Stern wrote about the matter in a Slate piece later that day. “These groups may passionately believe that Grimm is a girl—but unfortunately for them, they aren’t entitled to change his gender in the caption of their amicus briefs,” he wrote.

Pronouns for referring to transgender people can be a fraught issue, as some transgender individuals prefer ones that match their gender identity, while others have embraced pronouns such as “they” or other variations. And some people refuse to use the pronouns preferred by transgender individuals.

Stern says in the piece that he asked Liberty Counsel, an Orlando, Fla.-based conservative legal organization that wrote the brief for the Child Protection Institute and Reisman whether the use of “her” was intentional. It was, the group told him, and it “used a female pronoun because ‘Gavin Grimm is a biological girl who now says she subjectively ‘identifies’ as a ‘boy.’” (Emphasis in bold evidently added by Liberty Counsel, which didn’t respond to my request for a comment.) [UPDATE 8 p.m. March 5: Over the weekend, Liberty Counsel forwarded to me its letter to Harris that takes issue with whether its brief violated Supreme Court rules and accuses Harris and his deputy of giving the impression that they “prejudged” the issue in the case by concluding that Grimm is male.]

The attorney of record for the other brief that used “her"—the National Organization for Marriage and Center for Constitutional Jurisprudence—did respond to me via email.

John C. Eastman, a law professor at Chapman University in Orange, Calif., said the use of the female pronoun “was deliberate and in accord with my client’s wishes, because the caption provided by Plaintiff in the lower court conveyed an advocacy position on the central issue in the case that was contrary to the position being advocated by my client.”

Eastman is also the director of the Center for Constitutional Jurisprudence, an affiliate of the Claremont Institute. (That would seem to make him one of his own two clients on the brief.)

Eastman also took issue with the Supreme Court clerk’s interpretation of court rules, and he referred me to several blog posts written about the contretemps this week by Ed Whelan, who writes the Bench Memos legal blog of the National Review.

Whelan wrote posts here, here, and here titled, “Supreme Court Clerk’s Office as Pronoun Police?”

“Just as proponents of G.G.'s legal claim insist on using masculine pronouns for her, many opponents of that claim understandably decline to do so,” wrote Whelan, who notes that the Gloucester County School Board “pursues that objective” in its merits brief by “by studiously avoiding any use of third-person singular pronouns to refer to G.G.”

Yes, Whelan refers to Grimm as “her” throughout his posts.

And Whelan, a Harvard Law School graduate and former law clerk to the late Justice Antonin Scalia, gets into some arcane arguments about Supreme Court procedure in support of his view that the briefs that used “her” to refer to Grimm did not violate the court’s rule about proper captions, and at the very least the court has not been consistent about applying that rule.

“The manner in which the clerk’s office handled this also strikes me as highly dubious,” Whelan writes.

Lawyers for Grimm did not address the use of the female pronouns in the two friend-of-the-court briefs when they filed their merits brief on Feb. 23, but they informed the court that Grimm has legally changed his name, and he has a Virginia ID card and an amended birth certificate stating that he is male.

The deadline for friend-of-the court briefs in support of Grimm was Thursday (March 2), and not all the briefs were immediately available, though many are collected here at the site of the American Civil Liberties Union, which is representing Grimm.

I think we can presume that those briefs will follow the court’s caption rule as interpreted by the clerk’s office and will refer to Grimm with a male pronoun.

Arguments in the case are scheduled for March 28, pending the court’s consideration of letters from the parties about how to proceed after the Trump administration withdrew Obama administration guidance on transgender issues in schools.

A version of this news article first appeared in The School Law Blog.