The Wisconsin Supreme Court today referred to a biologically-male sex offender using female pronouns when referring to the offender after the offender began identifying as female. The offender weighs over 300 pounds, and does not resemble a typical woman at all.
The language used by the court did not affect the court’s ruling — it quite sensibly rejected the offender’s attempt to get off the sex-offender registry by citing the offender’s transgender status. The Wisconsin Supreme Court is not a pro-criminal court.
Some readers will find it odd that the court used female pronouns for the sex offender. Nevertheless, most courts nationally would refer to a transgender inmate using female pronouns if the inmate identifies as female, even if the inmate is biologically male. Bar associations tend to be progressive, and using transgender pronouns helps judges avoid a backlash from the largely-progressive legal profession.
Not all courts use transgender inmates’ preferred pronouns. The conservative-leaning Fifth Circuit Court of Appeals rejected the use of a transgender inmate’s preferred pronouns in U.S. v. Varner. As it observed, the use of transgender inmates’ preferred pronouns is not legally obligatory, and is sometimes confusing or unmanageable, such as when inmates refer to themselves as “zee,” “hir,” or “xemself.”
It can also violate the First Amendment to require someone to use a transgender person’s preferred pronouns. That’s what the Sixth Circuit Court of Appeals ruled in letting Professor Nicholas Meriwether sue Shawnee State university for ordering him to use a transgender student’s preferred pronouns.
The Wisconsin Supreme Court ruling dealing with the transgender inmate is In the Interest of C.G., decided today. Here is an excerpt from the court’s opinion:
Because Ella [the pseudonym the parties used for the petitioner] entered the juvenile justice system as a male, many relevant records——including records prepared at the direction of Ella’s appellate counsel——refer to her using male pronouns. When quoting those records, we use those pronouns. Elsewhere in our opinion, however, we use female pronouns out of respect for Ella’s individual dignity. All parties and amici curiae used her preferred pronouns in their briefing, and the court of appeals used them in its published opinion.
{We recognize the use of preferred pronouns is a controversial issue. No law compels our use of Ella’s preferred pronouns; we use them voluntarily. Our decision to do so bears no legal significance in this case, nor should it be construed to support their compulsory use.
Although cautioning courts to “remain scrupulously neutral” with respect to the use of pronouns, Justice Brian Hagedorn does not recognize in his concurrence that referring to Ella as C.G. will be seen as a partisan choice by many readers. The “ontological and moral question[]” over pronouns is neither legal in nature nor within the scope of the issues presented. We join the parties and the court of appeals in referring to Ella using her preferred pronouns.
In addition to showing respect for Ella’s individual dignity, using the same convention as the parties ensures we “remain scrupulously neutral”——in contrast, Justice Hagedorn uses a convention even the State, which is adversarial to Ella, has chosen not to use. The only alternatives to choosing between masculine and feminine pronouns in this opinion would either offend the rules of grammar (the singular “they”) or produce a stilted writing (exclusive use of proper nouns).}
Justice Brian Hagedorn, a conservative on the Wisconsin Supreme Court, took a different view than his colleagues:
I write separately to address a sensitive matter. The majority/lead opinion explains that it uses “female pronouns out of respect for Ella’s individual dignity,” acknowledging “[n]o law compels our use of Ella’s preferred pronouns; we use them voluntarily.” The dissent and the court of appeals make the same editorial decision. Whether to use an individual’s preferred pronouns, rather than those consonant with one’s biological sex, presents ontological and moral questions about our identity as human beings. It is a matter deeply personal to those who wish to be called by certain pronouns, and to many who are asked to call others by their preferred pronouns.
These relatively new cultural debates are, in the main, not questions courts are well-equipped to answer. As a court of law, we should do our best to remain agnostic regarding debates where the law does not supply an answer. This is motivated in part by the modest nature of the judicial role, and in part out of the prudential concern that these contested moral matters could soon become contested legal matters. The court’s decision to use female pronouns could be misread as suggesting that someone who identifies as a female is in fact a female, under the law or otherwise. See also United States v. Varner (5th Cir. 2020) (presenting additional reasons why the court’s use of a party’s preferred pronouns could prove problematic). We should aim to avoid any unintended legal consequences of our language choices.
C.G.’s decision to identify as a woman is grounded in a particular way of understanding sex and gender——one rooted in a person’s individual sense of identity. This view is a departure from what was widely accepted just a few years ago and is by no means universally shared today. Without question, C.G. should be treated with the same dignity and respect as any other litigant before this court. But I believe we would do well to remain scrupulously neutral rather than assume that pronouns are for choosing. These matters of grammar have downstream consequences that counsel caution, particularly as a court of law where such decisions could have unknown legal repercussions.
C.G. is a sex offender who identified as male at the time of the relevant crime. C.G. sexually assaulted a 14-year-old boy (who the justices refer to as “Alan,” using a pseudonym). In the sexual assault, C.G. and a female classmate held down Alan (who was 110 pounds and 5’10”) and covered his mouth while C.G. performed oral sex on Alan. The justices ruling states that “Alan is a heterosexual male,” who objected to the oral sex because “he ‘did not want to get “head” from a guy.'” C.G. was 15 years old at the time of the offense, and was 300-345 pounds and 6’4″ or 6’5″ the following year.
