(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.
Did you notice the pronoun I used in that last sentence? As a genderqueer who does not conform to gender conventions, Doe prefers plural pronouns to gendered singular alternatives. Doe’s lawyers refer to their client throughout their filings as they. Fedcap’s lawyers do the same, pointing out in a footnote that the company was deferring to Doe’s preferred pronouns.
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.
I couldn’t recall reading a previous opinion that used plural pronouns to refer to a non-gender-conforming litigant so I reached out to Joshua Block, a transgender rights lawyer at the American Civil Liberties Union, to talk about Judge Oetken’s Doe decision. Block, who represents Gavin Grimm in litigation over the transgender teenager’s use of boys’ bathrooms at his high school, said he doesn’t think Oetken is the first judge to use plural pronouns in a case involving a genderqueer person – and certainly shouldn’t be the last.
“It shows basic respect for litigants appearing in front of you and the appearance of impartiality,” Block said. “If judges reject the use of a pronoun, are they really giving the litigant a fair shake?”
Judges can write opinions to avoid both gendered and plural pronouns to refer to gender non-conformists appearing before them. In 2016, for instance, U.S. District Judge R. Brooke Jackson of Denver issued a 12-page order in a case by an intersex plaintiff, Dana Zzyym, challenging the U.S. State Department’s policy of requiring passport applicants to identify themselves as either male or female. Judge Jackson found “no evidence that the Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy,” and remanded the case to the State Department to fill out the administrative record. His opinion refers to Zzyym as “Dana” or “the plaintiff,” avoiding the plural pronouns Zzyym’s lawyers at Lambda Legal used in their briefing.
I tried that strategy above, in the paragraphs describing Doe’s allegations and the briefing on their motion to litigate under a pseudonym. It’s hard not to end up with awkward, stilted locutions that sacrifice clarity – and even information – for the sake of avoiding a pronoun. Judge Jackson managed to write a smooth, literate opinion in the Zzyym case but I bet it cost him considerable effort.
When I reread Judge Oetken’s Doe opinion after talking to Josh Block, I understood what Block meant about the common decency of using a litigant’s preferred pronouns instead of writing around the issue. Jaime Doe is entitled to the same crisp, clear writing as every other person who appears before Judge Oetken. They got an opinion that explains why the judge believes Fedcap’s interest in litigating openly outweighs their interest in protecting their privacy. Doe may not like the outcome, but they have to appreciate the judge’s respect for their gender nonconformity.
It used to be, Block told me, that lawyers for transgender individuals would include footnotes in their briefs explaining that they would refer to their clients using pronouns associated with the client’s sexual identity, not sex at birth. Those footnotes, he said, have become obsolete as courts have grown accustomed to transgender litigants. Someday, Block said, we’ll probably look back at an opinion like Judge Oetken’s in the Doe case and wonder what the fuss was about.