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Alito and Thomas support transgender asylum seeker’s fight against Biden while deftly avoiding pronouns


Left, Associate Justice of the Supreme Court Samuel Alito. (Image via YouTube screengrab/The Heritage Foundation.) Right, Associate Justice of the Supreme Court Clarence Thomas. (Image via YouTube/Library of Congress.)

The Supreme Court handed down a unanimous and potentially “destabilizingopinion Thursday when it ruled against the deportation of a transgender asylum seeker.

Although Justice Ketanji Brown Jackson used the refugee’s preferred pronouns throughout the 19-page opinion, Justice Samuel Alito managed to sidestep pronouns altogether in his concurrence.

Estrella Santos-Zacaria — identified in court proceedings under her former name, Leon Santos-Zacaria — is a 34-year-old transgender woman from Guatemala. Growing up in Guatemala, Santos-Zacaria was raped at age 12 and tormented for being gay, and she later unlawfully entered the U.S.  She was deported twice, then re-entered the U.S. again in 2018.

The Biden administration sought to deport Santos-Zacaria, but she applied for asylum on the basis that she would likely be persecuted for her sexual orientation and gender identity if she returned to Guatemala. The issues in the case have been described as a “jurisdictional jumble” — and, ultimately the Supreme Court ruled in Santos-Zacaria’s favor, finding that she did not need to exhaust all administrative remedies before appealing to a federal court — but Thursday’s ruling is also notable for who referred to Santos-Zacaria by her preferred pronouns, and who managed to avoid it entirely.

Right from the start, Jackson recounted the facts in a manner that clearly acknowledged the refugee’s gender identity:

Petitioner Leon Santos-Zacaria (who goes by the name Estrella) fled her native Guatemala in her early teens. She has testified that she left that country, and fears returning, because she suffered physical harm and faced death threats as a transgender woman who is attracted to men.

Jackson explained that if the Court had ruled against Santos-Zacaria, it would create the need for litigants to “slog through preliminary nonjudicial proceedings even when… it would be pointless, wasteful, or too slow.” Such an outcome would be untenable given that it would sacrifice the very efficiency that the exhaustion rules aim to create, explained Jackson while remanding the case for further proceedings.

As is the usual practice in opinions, Jackson referred to the petitioner by her surname throughout the opinion; the seven times a pronoun appeared, Jackson used “her.”

Justice Samuel Alito, meanwhile, authored a one-paragraph concurrence which was joined by Justice Clarence Thomas. The essence of their brief statement was to explain that while the two agree with the Court’s ruling with respect to Santos-Zacaria’s case, they would have chosen a more narrow ruling that does not declare the exhaustion requirement non-jurisdictional in all contexts.

Alito referred to Santos-Zacaria’s case only obliquely, with the conspicuous absence of any names or pronouns whatsoever. Instead, Alito confined his discussion to references to the statute, its requirements, and general words such as “this case” and “the circumstances presented here.”

Alito’s concurrence:

I agree with the Court that 8 U.S.C. §1252(d)(1) does not require the filing of a motion for reconsideration under the circumstances presented here. That provision requires the exhaustion of those administrative remedies that are “available to [an] alien as of right,” but the decision to grant reconsideration is discretionary. 8 CFR §1003.2(a) (2022). Because that determination disposes of this case, I would not decide whether §1252(d)(1) is jurisdictional with respect to the administrative remedies to which it does apply.

Pronoun usage by the Supreme Court rarely goes unnoticed. In 2017, the Court’s clerk reprimanded attorneys for filing court documents referring to Gavin Grimm, a transgender man, as “her.”

Three years later, when the Supreme Court ruled that employers who fire employees for being gay or transgender violate Title VII of the Civil Rights Act of 1964, Alito penned a dissent which was joined by Thomas and Brett Kavanaugh. In that dissent, Alito used transgender litigants’ preferred pronouns while criticizing the majority for failing to adequately define “transgender.” Alito remarked that the justices created a situation whereby “transgender” might “apply to individuals who are ‘gender fluid,'” thus risking their bathroom or locker room access.

Thomas often discusses the underlying facts of cases at length, particularly when writing about victims in criminal cases. In the case of Estrella Santos-Zacaria, however, Alito and Thomas were willing to cast a vote in her favor, but without using her pronouns to do so.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos