Fourth Circuit Submits to Language Revisionists

“What is a woman?” asks Matt Walsh, as he interviews dozens of people. His 105-minute film documents their answers. An easy answer, aside from the obvious “adult human female,” is that a woman is a person for whom no modifier is required to state as a fact that she is a woman. 

A recent Fourth Circuit opinion opens with the declaration that “Kesha Williams,” the plaintiff-appellant, “is a transgender woman.” Perhaps Walsh needs to do another documentary, filming the answers to the question: what is a “transgender woman?” Well, at least the opinion didn’t refer to Williams as a “transwoman.”

It is bad enough that the general public—including reporters, journalists, and other people who write for a living—is not attentive enough to avoid the thoughtless application of the tortured and distorted language that is foisted upon us. But for these new, imaginary, reality-defying terms to be validated by unquestioning use in a judicial opinion is a travesty. 

There are times when modifying a word deprives it of all meaning. This, like the addition of the words “same-sex” before “marriage,” is one of those times. An accurate statement of the facts would have been, “Williams is a man who, for the last 15 years, has been undergoing hormone treatments and living as a woman.” But no. Stated as a fact is “Williams is a transgender woman.” Whatever that is. Both Judge Diana Gribbon Motz’s majority opinion and Judge A. Marvin Quattlebaum’s opinion concurring in part and dissenting in part, refer to Williams using feminine pronouns.

The issue the Fourth Circuit was asked to address was whether “gender dysphoria” is the same thing as “gender identity disorder” for purposes of determining the applicability of the Americans with Disabilities Act. I leave it to another time and another writer to report on how the court did in identifying and analyzing the factors entering into its answer to that question. 

What concerns me at the moment is the Fourth Circuit’s acquiescence in, and apparent embrace of, the language sought to be imposed upon us all by the current crop of gender radicals. This is in stark contrast to Fifth Circuit Judge Kyle Duncan’s January 2020 opinion in U.S. v. Varner. Varner had pleaded guilty in 2012 to charges relating to child pornography and was sentenced to 15 years in prison. During his incarceration, he decided to change his name from “Norman Keith Varner” to “Kathrine Nicole Jett” and began demanding to be referred to by that name and with pronouns used for women. He filed motions in court related to these two demands. The Fifth Circuit “declined to enlist the federal judiciary in this quixotic undertaking” of preferred pronoun usage. In dissent, Judge James L. Dennis used the prisoner’s preferred pronouns and cited as precedent other opinions that had done so, but which had explicitly stated that it was in deference to the litigant’s wishes. 

The recent Fourth Circuit decision concerns a person going by the name, with various spellings, Kesha or Keisha Williams. Over a period of several years, Williams conned more than 50 people out of nearly $5.5 million. The victims were often elderly people, and the funds were their life’s savings. Williams enticed them to believe they were investing in telehealth technology that would not only make them rich, but also help people obtain medical care, a worthy cause. In fact, Williams was just taking their money and living the high life—vacationing in exotic locales, shopping like a millionaire, and more. 

After two days of a jury trial in Alexandria, Virginia, in October 2018, Williams pleaded guilty to numerous federal charges and a few months later, Judge Leonie Brinkema sentenced Williams to 15.5 years in federal prison. In January 2020, Williams was the subject of an episode of CNBC’s “American Greed.” Included in the documentary were interviews with investigators and prosecutors who explained, among other things, that while they are often able to recover some stolen funds and return them to the victims of fraud, that had not been possible in the Williams case. Williams had spent it all. 

Knowing that Williams heartlessly robbed elderly people of their life savings so that he could live like royalty in luxury accommodations around the world makes me less than sympathetic to any discomfort he might feel—and this was one of his complaints—about being issued boxer shorts instead of ladies’ panties. I have no opinion about the discontinuation of controversial medications and decline to weigh in here about whether Williams’ appropriate place of incarceration is a women’s or a men’s prison. My focus is on the Fourth Circuit’s capitulation to the tortured and reality-defying language of the gender radicals.

Can society be saved if the courts have already thrown in the towel?

Williams’ unhappiness at not being treated the way he would like reminds me of a 1986 opinion by Seventh Circuit Judge Frank Easterbrook in U.S. v. House. While serving a life sentence for murder, George House killed a fellow inmate. He pleaded guilty to manslaughter in a deal requiring him to pay the costs of his victim’s burial. House being indigent, the only source for this costly reimbursement was his commissary allowance. In his opinion affirming the confiscation of House’s commissary allowance, Easterbrook wrote: “An inmate who craves chocolate would do well to avoid mayhem.”

A man who wishes to continue his cross-sex hormones and ladies’ clothing would do well to avoid defrauding vulnerable people of the nearly $5.5 million they needed to live on in retirement and then squandering it on his own luxuries and lavish living.

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About Eileen J. O'Connor

Eileen J. O’Connor is an attorney in private practice specializing in federal administrative and tax law. For nearly 30 years, she was a national tax consultant with the IRS and major accounting firms. She served as assistant attorney general in the Justice Department’s Tax Division for six years during the George W. Bush Administration and was a member of President Donald Trump’s Treasury Department transition team.

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