Our Federal Courts Need More Judges Like Mustafa Kasubhai

Courts Resources 05.30.24

By Kylee Reynolds

In January 2020, an incarcerated transgender woman petitioned a federal court with a simple request — that her name Katherine Nicole Jett be used in the court record and the court remove all references to her  deadname, and that the court refer to her using she/her pronouns consistent with her gender identity going forward. “I am a woman and not referring to me as such leads me to feel that I am being discriminated against based on my gender identity,” wrote Ms. Jett. “I am a woman — can I not be referred to as one?”

Her two-sentence motion, simple and straightforward, was all the invitation that anti-LGBTQ 5th Circuit judge, Stuart Kyle Duncan, needed. Tossing aside common decency, professionalism, and judicial ethics, Judge Duncan authored a lengthy transphobic screed masquerading as a court opinion, denying Ms. Jett’s motion. In it, he rallies against Ms. Jett’s plea for basic respect, instead claiming that there is no law “requiring” a court to use a litigant’s correct pronouns — it is merely a “courtesy” extended by some courts (but certainly never his). Further, he says that allowing a litigant to use their correct pronouns calls into question the court’s “impartiality” and culminates with his final absurd point that it’s all just too “complex” for our courts.

Judge Duncan’s manifesto, while claiming to be at least loosely acquainted with the law, completely ignores its ethical responsibilities. All federal judges, except for Supreme Court justices, are bound by an enforceable code of conduct, with ethical canons to guide them. Canon 3 of this code says that judges should perform their duties “with respect for others, and should not engage in behavior that is harassing, abusive, prejudiced, or biased.” In spite of this, Judge Duncan reveals he can’t even be bothered to use the word transgender in the opinion, instead opting to refer to Ms. Jett and transgender people generally as “gender dysphoric persons.”

While the simple idea of treating people in your courtroom with dignity and showing respect to litigants might be too “complex” for Judge Duncan, there are judges who intentionally create inclusive and welcoming courtrooms. Judge Mustafa Kasubhai, a current magistrate judge and federal judicial nominee for the District of Oregon, is one such judge.

Judge Kasubhai leads by example. His courtroom rules include a section on pronoun usage, where he encourages all attorneys and litigants who come before him to share their pronouns and honorifics so that all parties involved know how best to refer to one another. Further, he and his staff include their own pronouns in email signatures, electronic filings, and on their website. In fact, he authored a best practice guide, “Pronouns and the Courts,” to help others create a more inclusive courtroom.

Why is this notable? In an ideal world, it wouldn’t be. 

Transgender people already face overwhelming levels of discrimination in nearly all areas of life. From the right to access life-saving health care to the right to simply use the bathroom or play a sport, transgender folks must constantly fight simply for their right to exist. With each subsequent year topping the last, extremist lawmakers are introducing anti-LGBTQ bills at the local, state, and federal levels at alarming rates, with more than 500 introduced already in 2024.

With so many attacks coming from so many different places, it can be hard to know which spaces are safe for trans folks to show up as their authentic selves, requiring a constant calculus of risk assessment. At a bare minimum, our judiciary — created for and tasked with the responsibility of ensuring that our laws adhere to our country’s constitutional promises — should welcome all people as they are. But unfortunately, as Judge Duncan’s hateful court-sanctioned rhetoric demonstrates, this still isn’t the reality in every courtroom in our country.

Judge Kasubhai’s intentionality and respect for all people in his courtroom is commendable. The Leadership Conference supports Judge Kasubhai’s confirmation because his career has been steeped in defending and protecting the rights of working people, and his rulings as a magistrate judge have shown that he is a fair-minded jurist. If confirmed by the Senate to the District of Oregon, Judge Kasubhai would be the first Muslim Article III judge on this court and the only Asian American judge to ever serve a lifetime appointment in the state of Oregon — something worth noting as we celebrate AANHPI Heritage Month this month.

More than ever, our courts need judges like Mustafa Kasubhai: Judges who understand the responsibility to equity and fairness that comes with the lifetime job security of a federal judge. Judges who ensure that their courtrooms are welcoming and safe spaces for all people to show up as they are. Judges who treat all people with dignity. And judges who preside over courtrooms where all can trust that their case will be decided by a neutral arbiter on the merits, nothing more or less.

A promise for our judiciary is carved in stone above our nation’s highest court — “Equal Justice Under Law” — yet we’re still failing to live up to this promise. But with a swift confirmation of Judge Kasubhai, we will be just a bit closer. 

Kylee Reynolds is the fair courts policy counsel at The Leadership Conference on Civil and Human Rights.