Slusser et al v. Mountain West Conference, The et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:24-cv-03155-SKC-MDB
BROOKE SLUSSER, et al.,
Plaintiffs,
v.
THE MOUNTAIN WEST CONFERENCE, et al.,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFFS’ MOTION TO
RESCIND UNIFORM CIVIL PRACTICE STANDARD 43.1(A)
AND FOR RECUSAL (DKT. 73)
______________________________________________________________________________
Canon 3(A) of the Code of Conduct for United States Judges requires a judge
to “perform [the duties of judicial office] with respect for others, and . . . not engage in
behavior that is harassing, abusive, prejudiced, or biased.” Code of Conduct for
United States Judges (2019), Canon 3(A) (emphasis added).1 It goes on to explain that
“[a] judge should be . . . respectful, and courteous to litigants, jurors, witnesses,
lawyers, and others with whom the judge deals in an official capacity. A judge should
require similar conduct by those subject to the judge’s control, including lawyers to
1 The Code of Conduct is available here: https://www.uscourts.gov/administration-
policies/judiciary-policies/ethics-policies/code-conduct-united-states-judges
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the extent consistent with their role in the adversary process.” Canon 3(A)(3)
(emphasis added).
Consistent 	with 	Canon 	3(A), 	the 	Court 	maintains 	a 	Uniform 	Practice
Standard, 43.1A (“Decorum Standard”), which recommends—but does not require—
the use of preferred pronouns. In relevant part, the Decorum Standard provides:
(a) 	Courtroom Decorum.
(1) 	Creating a courtroom where all litigants, witnesses, and
counsel feel welcome and respected is of utmost importance to this
Court. In that regard, counsel are invited and encouraged to
identify 	the 	applicable 	pronouns 	of 	counsel, 	litigants, 	and
witnesses at the earliest juncture possible. This may be done in
an initial signature block, in person at a conference or hearing, or
in a witness list. Should the wrong pronoun be used, counsel are
encouraged to bring that to the Court’s attention at the time, or
through a subsequent email to Chambers.
(2) 	All parties should observe the following courtroom
decorum:
* * *
(D) Refer to all other persons by their surnames, prefaced
by the individual’s title (e.g., Dr., Agent, Officer, etc.) and
applicable pronouns.
SKC Civ. Practice Standard 43.1A (emphasis added).
Plaintiffs, 	who 	have 	consistently 	used 	he/him 	pronouns 	throughout 	this
litigation when referring to the non-party, alleged transgender female, now seek this
Court’s recusal because of its use of she/her pronouns. They also seek rescission of the
Decorum Standard. They argue the Decorum Standard “restricts Plaintiffs’ and their
counsel’s speech.” Attorneys William Bock III and Justin R. Olson each provided
sworn declarations averring they are “concerned that the Court’s [Decorum Standard]
could subject me to sanctions merely for adhering to my personal beliefs and for
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zealously advocating on behalf of my clients.” Dkt. 73-1, ¶7 (Bock); Dkt. 73-2, ¶7
(Olson). And Plaintiff Brooke Slusser provided a similar declaration. Dkt. 73-3, ¶5 (“I
am very concerned that the Courts (sic) [Decorum Order] could subject me to
sanctions merely for adhering to my personal beliefs and convictions[.]”).
Because Plaintiffs’ recusal request is based on “unsupported, irrational, [and]
highly tenuous speculation[,]” Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987),
and because this Court has allowed Plaintiffs from the outset to use whatever
pronouns they choose, the Motion is DENIED.2
A. LEGAL PRINCIPLES
Under 28 U.S.C. § 455,
(a) Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning
the proceeding[.]
28 U.S.C. § 455(a), (b)(1). The purpose of § 455 is to avoid “even the appearance of
partiality” by the judge. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,
860 (1988) (cleaned up). “The test is whether a reasonable person, knowing all the
relevant facts, would harbor doubts about the judge’s impartiality.” Hinman v.
2 The Court rules on the Motion without awaiting a response. See D.C.COLO.LCivR
7.1(d) (“Nothing in this rule precludes a judicial officer from ruling on a motion at any
time after it is filed.”).
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Rogers, 831 F.2d 937, 939 (10th Cir. 1987). This is an objective standard. United
States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993). The judge whose impartiality is at
issue need not take the factual allegations raised by the party challenging their
impartiality as true, nor is the judge limited to those facts presented by the
challenging party. Hinman, 831 F.2d at 939.
If “no reasonable person, knowing all the relevant facts, would harbor doubts
about the judge’s impartiality,” the motion to recuse must be denied. Bryce v.
Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 659–60 (10th Cir. 2002)
(cleaned up). Indeed, a judge has “as strong a duty to sit when there is no legitimate
reason to recuse as he does to recuse when the law and facts require.” Id. at 659
(cleaned up). A judge should not recuse based on “unsupported, irrational, or highly
tenuous speculation.” Hinman, 831 F.2d at 939. Nor should the recusal statute “be
construed so broadly as to become presumptive or to require recusal based on
unsubstantiated suggestions of personal bias or prejudice.” Bryce, 289 F.3d at 659-
60. “The statute is not intended to give litigants a veto power over sitting judges, or
a vehicle for obtaining a judge of their choice.” Cooley, 1 F.3d at 993.
B. ANALYSIS
1. 	The Court Has Not Required Any Party to Use She/Her Pronouns
At the outset of this case, the Court has appropriately balanced its obligations
under Canon 3(A) to show respect and courtesy to those involved, with the role of
Plaintiffs’ counsel in the adversary process. See Canon 3(A)(3) (a judge should require
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lawyers to be respectful and courteous to others “to the extent consistent with their
role in the adversary process”). During the November 20, 2024 Status Conference,
the Court told counsel:
Throughout the case I’m going to refer to the transgender athlete that’s
referenced in the parties’ pleadings using she/her pronouns based on
what I understand to be her gender identity from the parties’ filings. I
understand at some levels this case involves a debate about gender and
gender identity and therefore the parties may refer to this individual
however they choose. I only require that the parties remain professional
and respectful when speaking about her; and so far counsel has done
that within the context of what’s in dispute and in the context of the
parties’ respective theories of the case.
I do want to make clear, though, that the parties should not construe my
use of she/her pronouns in reference to this individual as any indication
that the Court has prejudged any issues in this case.
Dkt. 50, pp.4-5 (emphasis added). The Court reiterated this the next day at the start
of the November 21, 2024 oral argument:
All right. And as I indicated to the parties yesterday, I’ll reiterate
throughout this case, I’m going to refer to the transgender athlete
referenced in the parties’ pleadings by using she/her pronouns based on
what I understand to be her gender identity from the parties’ filings. I
understand that this case involves a debate about gender and gender
identity and therefore the parties may refer to this individual however
they choose; I only require that the parties remain professional and
respectful when speaking about her. So far counsel has done that and I
want to make clear that my use of those pronouns should not be construed
as the Court having prejudged any issues at all in this case.
Dkt. 51, pp.3-4 (emphasis added).
Consistent with the Court having twice told Plaintiffs they may use whatever
pronouns they choose, Plaintiffs have done exactly that throughout this litigation in
their written filings and oral advocacy. And they’ve zealously done so without
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admonishment or threat of sanctions from the Court. They have also consistently
referred to the alleged transgender female as a “male” or “man” throughout these
proceedings, again without admonishment or threat of sanctions from the Court.
The Court well understands Plaintiffs’ theory of the case. The Court has given
Plaintiffs free reign to argue that theory without restricting or compelling their
speech. There is no need to “rescind” the Decorum Standard. Plaintiffs’ speech has
neither been restricted nor compelled in this case, and they point to zero examples of
this Court enforcing any such restrictions or compulsions on them.
2. 	Plaintiffs Confuse Respect and Courtesy for Bias and Prejudgment
As mentioned, Canon 3(A) requires judges to perform their duties “with respect
for others.” It also requires judges to be “respectful” and “courteous” to those involved
with judicial proceedings. The Courts Decorum Standard is consistent with this
Canon.
The low-hanging fruit of Canon 3(A)’s precepts is a court’s use of another’s
preferred pronouns. This Court’s use of she/her pronouns when referring to an alleged
transgender woman in matters before the Court is hardly unique in the judiciary.
Courts across the country, including the Supreme Court, utilize the preferred
pronouns of those involved in judicial proceedings out of courtesy and respect, not out
of bias and prejudgment. See Santos-Zacaria v. Garland, 598 U.S. 411, 414 (2023)
(using she/her pronouns when referring to petitioner, a transgender woman); L.E. by
Esquivel v. Lee, 728 F. Supp. 3d 806, 814 n.2 (M.D. Tenn. 2024) (“The Court will use
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L.E.’s preferred pronouns, despite Defendants’ objection, because the Court extends
this basic respect to every litigant.”); Walker v. Cain, No. 3:21-CV-273-CWR-FKB,
2023 WL 1466935, at *1 n.1 (S.D. Miss. Feb. 2, 2023) (“While Petitioner has not moved
to change the name listed in the caption or other filings, this Court will give her the
respect of using her preferred pronouns.”); Charles v. Neal, No. 3:20-CV-599-RLM-
MGG, 2022 WL 1091514, at *1 n.1 (N.D. Ind. Apr. 12, 2022) (“Out of respect, the court
uses her preferred female name and pronouns throughout this opinion.”); Keohane v.
Jones, 328 F. Supp. 3d 1288, 1292 n.1 (N.D. Fla. 2018) (“Out of respect for Ms.
Keohane, this Court uses female pronouns when referring to her—a courtesy not all
of Defendant’s agents have extended, though Defendant is endeavoring to remedy
this slight[.]”), vacated on other grounds, 952 F.3d 1257 (11th Cir. 2020); Bayse v.
Holt, No. 1:17-CV-962-WSD, 2018 WL 3660367, at *1 n.1 (N.D. Ga. Jan. 5, 2018)
(“Because Plaintiff alleges that she is a transgender female and uses female pronouns
to refer to herself, the Court will use those pronouns as well.”).
But Plaintiffs argue the Court’s Decorum Standard and its use of she/her
pronouns “reflects the Court has prejudged a key question in this case—whether
anyone who identifies with the opposite sex becomes a member of that sex.” Dkt. 73,
p.5. They later argue this Court’s use of the phrase “sex assigned at birth” also
indicates “prejudgment of the question of whether sex is fixed and immutable.” Id. at
ECF p.16. They conclude, “[t]hus, from the start and through the [Decorum Standard]
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the Court has repeatedly signaled a preconceived view on a key issue in this case:
whether sex is determined by choice or by biology.” Id.
Would that it were so simple. The notion that a judge’s mere use of preferred
pronouns and accepted terminologies to reference potentially complex issues of
biology indicates bias and prejudgment is definitional “unsupported, irrational, or
highly tenuous speculation.” Hinman, 831 F.2d at 939. As such, there is no basis for
recusal. Ironically, it would appear Plaintiffs attempt to restrain and compel this
Court’s speech to their preferred terms.
C. CONCLUSION
“In recognizing the humanity of our fellow beings, we pay ourselves the highest
tribute.” Furman v. Georgia, 408 U.S. 238, 371 (1972) (Marshall, J., concurring). The
Court is duty-bound to show respect and courtesy to all involved in, or affected by,
these judicial proceedings. It will continue to do so. And no party should continue to
confuse the Court’s show of respect and courtesy for bias and prejudgment. The Court
meant what it said, twice before—first on November 20 and again on November 21—
the parties may refer to the alleged transgender woman however they choose so long
as they remain respectful; the parties should not construe the Court’s use of she/her
pronouns as any indication that the Court has prejudged any issues in this case.
For the reasons shared above, the Court finds a reasonable person, knowing
all the relevant facts, would not harbor doubts about this Court’s impartiality. The
record objectively reflects this Court’s rulings have not been based on partiality, bias,
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or prejudgment, but instead have been based on controlling Tenth Circuit and
Supreme Court precedent and the facts and evidence presented by the parties.
The Motion (Dkt. 73) is DENIED.
Dated: February 24, 2025.
BY THE COURT:
_ _____________________________
S. Kato Crews
United States District Judge
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