By TIM CARPENTER Kansas Reflector
TOPEKA — The practice among some federal judges in the 10th Circuit U.S. Court of Appeals to require use of pronouns preferred by attorneys, litigants and witnesses was potentially unconstitutional and undermined judicial impartiality, the Kansas attorney general said Tuesday.
Attorney General Kris Kobach, a Republican elected in 2022, submitted a letter of complaint to the appellate court’s chief judge arguing for termination of the practice followed by at least five district court judges within the 10th Circuit.
He said lawyers in the attorney general’s office objected to the idea of undermining clarity of judicial proceedings when individuals sought to impose on others their applicable pronouns, such as “they” or “them,” which the attorney general asserted were based on a person’s “internal feelings.”
“The courtroom is no place to dismantle science, butcher the English language and deny constitutional rights in order to spare an individual’s feelings,” Kobach said. “It is neither proper nor prudent for judges to expect that parties refer to counsel, litigants or witnesses by idiosyncratically selected pronouns.”
The Kansas attorney general has been at the forefront of legal actions in state and federal court to undermine the right of transgender Kansans to secure a birth certificate or driver’s license that reflected their gender identity. Kobach, in addition to majorities in the Kansas Legislature, have intensified in recent years a campaign to require official state documents exclusively reference an individual’s sex assigned at birth.
In the letter, Kobach theorized a judicial mandate forcing people to affirm another’s selected pronoun equated to compelled speech that violated the First Amendment in the U.S. Constitution. He said expecting others to use preferred pronouns wasn’t a measure of respect, but an intrusion into religious freedom.
He pointed as evidence to the Bible and Christian interpretation of Genesis 1:27 that concentrated on a male and female dichotomy among persons.
The subject of gender identity was a growing segment of litigation, Kobach said, and a judge requiring people appearing in court to address others with certain pronouns “may reveal a prejudgment on issues.” Adhering to traditional use of the English language with respect to pronouns was an indicator of a court’s neutrality, he said.
“The government compelling specific speech is unconstitutional. But it’s particularly troubling in a courtroom, where the scales of justice should be balanced,” Kobach said. “The requirement gives the appearance that a judge has staked out a position on a controversial issue that is not yet settled in law.”
The attorney general directed his letter to Chief Judge Jerome Holmes, who was nominated by President George W. Bush and confirmed by the U.S. Senate in 2006.