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The problem with switching gender in prison

Delusions should not be codified into law and become a reason to put women in danger

January 16, 2020

2:50 PM

16 January 2020

2:50 PM

What’s a convicted sex offender and child porn collector to do when he ends up incarcerated in federal prison for 15 years? Change his name and petition to be legally documented as female, of course. Such is the story with Nathan Varner, who was locked up in 2012, then changed his name and started on female hormones in 2015.

Varner has now petitioned the courts to make a woman of him on paper. After his first case was denied in 2018, Varner appealed to a higher court, and the resulting decision, like Varner’s pencil skirts, was split. The majority opinion refers to Varner with male pronouns, while the dissent uses female ones.

The majority ruling of the US Court of Appeals for the Fifth Circuit, written by Judge Stuart Kyle Duncan, takes the view that a name change isn’t a reason to alter the documentation of a correct conviction. In fact, Duncan notes, Varner is able to use his new moniker as a secondary name. Prison guards and officials can refer to him with female or non-binary pronouns; it’s just that they’re not obliged to by law. Varner can live as he chooses, and can seek the gender-reassignment surgery he claims to want, but he will always be male in the eyes of the Fifth Circuit. Obviously he will. That’s science.


On the matter of pronouns, Duncan does not believe that Varner’s assertion ‘I am a woman’ grants the law authority to mandate cross-sex pronouns. The court finds Varner’s claim that male pronouns make him feel ‘uneasy and disrespected’ irrelevant in law. Which, of course, it is. No matter what the court documentation, a male will retain his maleness. Surgeries and words don’t alter genetic reality. There can only be one reason that Varner wanted this change to be made on legal papers, and it would be so that he could petition the court to move him to a female prison.

It’s not unusual for male-bodied transwomen to ask for relocation to women’s penal facilities. In New Jersey, the ACLU helped a biological male named Sonia Doe move from a men’s to women’s prison. Although Doe was taking hormones, his body remains fully male. Such is also the case with Deon ‘Strawberry’ Hampton in Illinois, an unnamed prisoner in Massachusetts and Jai Diamond in New York. These individuals are not women, but for their own safety, they’re now living with women. The safety of the women they are housed with is a concern to no one in the criminal justice system.

While Duncan dug into legal minutiae for precedents to deny the appeal, his counterpart in the minority opinion fell back on the now-familiar and tired placing of compassion above reality. Judge James L. Dennis does not look beyond this case and Varner’s specific request in considering the name change and pronouns. Instead, Dennis does what so many do in these cases: narrow the focus, with no consideration of what the precedent would be. His only concern is ‘respect for the litigant’s dignity’. Oblivious to the dignity of those born female, he uses female pronouns in his argument.

The battle over transgender ideology has been waged in the pixels of the press and social media and in legislation, but it is in the courts that much of the decision-making power rests. The Supreme Court is currently considering the case of Harris Funeral Homes v. Equal Employment Opportunity Commission, which details transwoman Aimee Stephens’s firing after refusing to stick to a male dress code. In the oral arguments in October 2019, the Court weighed the merits of considering the narrow focus of this case against the precedent-setting nature of a judgment defining sex and gender. We won’t know until this spring whether the justices decide to decide.

The question is, if Aimee Stephens has been discriminated against on the basis of sex for not adhering to the dress code of the male sex, would Stephens not be required to do the same if defined as a woman? If SCOTUS takes a narrow view and decides according to the letter of the law, it will most likely find in favor of Stephens. But if the court considers that an affirmative decision would legally codify a non-biological definition of sex, they would have to rule against Stephens.

In the Varner case, it was the narrow view that lost — as well it should have. Delusions should not be codified into law and become a reason to put women in danger. The split decision of the Fifth Circuit perfectly shows the legal conundrum of transgender ideology — and its social unreality. The Fifth Circuit has decided is that it’s less important to affirm delusions solely for the maintenance of ‘dignity’ than it is to have accurate court records. Thus orderly bureaucracy trumps disorderly activism. Hopefully this will be a harbinger, not an outlier.

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