Friday, January 16, 2009

Suspicion, pronouns, and transgender litigants

Ignorance, indifference and hostility with regard to gender identity issues is often on display in judicial opinions. Nevertheless, even in decisions that substantively disrespect, disregard and repudiate the gender identities of trans people, judges nowadays use respectful pronouns more often than not. Many judges seem to subscribe to the ethic that it is not important to respect trans and queer people, only to treat them politely. This is abominable, but one can at least understand it.

And then sometimes things just don't make sense. Witness the Michigan Court of Appeals ruling in People v. Rowe, 2009 WL 81282 (Jan. 13, 2008). This is a criminal appeal by a transgender woman who was in the business of "erotic massage," and was in an altercation with a client who, she alleged, demanded sex from her and groped her. The client ended up with with a vase and, he claimed, short about eighty bucks. The masseusse was convicted of armed robbery (with a vase), and the appeals court upheld her conviction despite the trial court's refusal to give a jury instruction on self-defense.

The appeals court's legal analysis seems not unreasonable, but one wonders what was actually going on here. Given that we have an altercation between a male client and a transgender sex worker, one can imagine the suspicion with which the defendant was viewed by the police, the trial judge, and the jury. (The moreso, perhaps, when the client claimed that he made the rendezvous without having any idea that the woman was trans. This seems unlikely; trans sex workers typically are very explicit about this, because to do otherwise would be bad for business and risk their safety.) But it's very difficult to know what really went on from the court's opinion.

At any event, the court's pronoun usage veers back and fourth throughout the opinion. It begins: "
Defendant appeals as of right his jury trial conviction of armed robbery." In the next paragraph, the court says: "During the fight, allegedly the complainant dragged the defendant on the ground by her long hair." In the next paragraph, we're back to his: "Defendant's sole argument on appeal is that the trial court's refusal to give a self-defense jury instruction was ...a deprivation of his Constitutional right to a fair trial." A little later, we're back to her, but the court also uses "women" in scare-quotes to describe the defendant and another trans woman who was drawn into the altercation. The only method to this is that the court uses her when describing the facts and his when describing defendant's legal arguments (suggesting, perhaps, that the defendant's social identity is different from her legal identity). This is all the more infuriating in an opinion signed "Per Curiam," i.e. by the whole three-judge panel rather than by one of its members. Did their clerks just draft different sections and cut and paste them together?

1 comment:

David Harmon said...

"Did their clerks just draft different sections and cut and paste them together?"

My sister spent some time as a judicial clerk, and from what she was saying at the time, I can easily believe that'sexactly what happened.