Eighth Circuit Finds Prosecutor Didn’t Commit Plain Error by Failing to Refer to Defendant by Their Preferred Pronouns

Should prosecutors be required to refer to defendants by their preferred pronouns? That was the question of first impression addressed by the Eighth Circuit in its recent opinion in United States v. Thomason, 2021 WL 966844 (8th Cir. 2021).

In Thomason, Shawn Thomason pleaded guilty to one count of interstate stalking. After being sentenced, Thomason appealed, claiming that the prosecutor ignored their her diagnosis of gender dysphoria by referring to them her with male pronouns. Thomason, however, “did not object to the use of masculine pronouns until the end of a restitution hearing…At that point, [s]he objected to “all instances of purposeful and deliberate misgendering of me in this case as it pertains to the restitution memorandums.” The Eighth Circuit denied Thomason’s appeal, ruling as follows:

We reject Thomason’s argument that alleged prosecutorial misconduct justifies vacating his conviction. By pleading guilty, Thomason waived all non-jurisdictional claims arising from events before the plea….There is no basis for resentencing either. By signing a plea agreement that used masculine pronouns, acknowledging that his own sentencing letter would use masculine pronouns for the sake of clarity, and using masculine pronouns through counsel at the sentencing hearing, Thomason waived any claim of misconduct by opposing counsel. And even if we assume forfeiture rather than waiver, there is no plain error warranting relief. Thomason cites no authority for the proposition that litigants and courts must refer to defendants by their preferred pronouns, and the only cited authority is to the contrary. See United States v. Varner, 948 F.3d 250, 254 (5th Cir. 2020). Nor is there any showing that the use of pronouns affected the outcome of the proceeding.

In that Varner opinion, the Fifth Circuit ruled that

no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric2 litigants with pronouns matching their subjective gender identity. Federal courts sometimes choose to refer to gender-dysphoric parties by their preferred pronouns. On this issue, our court has gone both ways….But the courts that have followed this “convention”…have done so purely as a courtesy to parties. 

I expect this to be a subject that comes up with increasing frequency in the next few years, and it will be interesting to see whether the use of preferred pronouns remains courtesy or becomes compulsory.

-CM