Tenebrous

Tenebrous (pronounced ten-uh-bruhs)

Dark; gloomy; obscure.

1375-1425: From the late Middle English tenebrose (full of darkness, gloomy), from the Anglo-Norman tenebrous (the earlier spelling was tenebrus), from the eleventh century Old French tenebros (dark, gloomy) (which endures in modern French as ténébreux), from the Latin tenebrōsus (dark), from tenebrae (darkness, shadows).  The Latin forms may have been dissimilated from the earlier temebrai, from the primitive Indo-European root temsro- (dark), an adjective from temos- (darkness).  The adjective tenebrous indicates a high degree of darkness but not an absolute absence of light, the comparative is thus more tenebrous and the superlative most tenebrous.  Tenebrous is now a literary word valued by poets because of the relative novelty of the rhyming and is used also figuratively (as early as the 1670s it was deployed to suggest someone was “morally or mentally dark”.  Tenebrous, tenebricose & tenebrific are adjectives, tenebrity, tenebrousness & tenebrosity are nouns and tenebrously is an adverb; the noun plural is tenebrosities.  The alternative spelling is tenebrious and except in literary use, the verb tenebrize is now obsolete.

Salomè con testa del Battista (Salome with the Head of John the Baptist, circa 1608), oil on canvas by Caravaggio (Michelangelo Merisi da Caravaggio; 1571–1610), National Gallery, London.

Tenebrosity (darkness, gloom, obscurity) was from the early fifteenth century, tenebrious (pertaining to darkness, of a dark nature) dates from the 1590s, tenebrity (quality of being dark) was in use by at least 1792 while tenebrific (producing darkness), dating from the late 1760s, was implied in the earlier tenebrificating, recorded in 1743.  In 1818, it was reported in a London publication there was a theory darkness was not simply the absence of light, but that certain heavenly bodies (called Tenebrific Stars), emitted rays of positive darkness, which produced what commonly was called “night”.  This is how science evolves, theories existing to compete as explanations for this and that until disproved.  The early fifteenth century Tenebrer (bearer of darkness) was an epithet of Satan.  One variant which didn’t endure was recorded in the mid-seventeenth century was tenebrion (one that will not be seen by day, a lurker, a night-thief (also a “night-spirit” and “hobgoblin”)).  In Christianity, the Tenebrae is a religious service celebrated by the Western Church on the evening before or early morning of Maundy Thursday, Good Friday, and Holy Saturday, involving the gradual extinguishing of candles while a series of readings and psalms are chanted or recited.  In fine art, the related tenebrism describes a style of painting using very pronounced chiaroscuro, with darkness a dominating feature of the image and a tenebrist is an artist applying the method.  Works in the genre are said to be tenebristic and in the late nineteenth century those painting in this manner (described usually as “in the style of Caravaggio” were called the tenebrosi; by 1959 the preferred term among art historians was tenebrism.

Illustrating the adjectival: Lindsay Lohan tenebrous (left), more tenebrous (centre) and most tenebrous (right), from Pop Magazine photo-shoot, Fall/Winter 2007.

The MOGAI

MOGAI stands for “Marginalized Orientations, Gender Alignments and Intersex” and is something of an omnibus term, acting as an umbrella term for sexual orientations, gender identities and intersex traits not considered “mainstream” although the very notion of “mainstream” is now a morass of cross-cutting claims, some factions demanding inclusion, others insisting on their separateness.  Whatever has been the track of MOGAI since its emergence in 2015, the original intent seems to have been one of “inclusiveness” and in that sense it’s both a logical extension of the LGBTQ+ concept and a recognition that so many categories could be identified the “extended model” (ie LGBTQQIAAOP and such) was becoming unmanageable.  Even “LGBTQ+” was in a sense counter-productive because in relegating certain letters (and thereby individuals or groups) to the “+”, there was an act of marginalization which, in the modern construct could be deemed a microaggression.  What advocates emphasize is that MOGAI exists for marginalized identities and it’s also as a kind of clearing house for novel or less recognized gender labels.  

DSM-5-TR (Text revision (2022) of DSM-5 (2013)).

In the narrow technical sense, MOGAI is a classification system but its focus on non-binary and other gender identities that are not cisgender seems to have acted to encourage the growth in the creation of categories and while some have “filled a gap”, there’s also clearly been linguistic adventurism in the same way some have been beyond imaginative in the coining of long German compound nouns and others have describe phobia despite there being no evidence of the particular fear ever having been defined as a clinical condition or even reported, a phenomenon the marvellously comprehensive Phobiapedia cheerfully acknowledges.  Whereas the American Psychiatric Association's (APA) Diagnostic and Statistical Manual of Mental Disorders (DSM) exists to codify mental health conditions including phobias, MOGAI is just one of many list of gender identities but one which commands interest simply on the basis of numbers: it has spawned literally hundreds of entries and while some are “variations on a theme”, the breadth is striking.

The DSM contains two obviously tenebricose conditions, Social Anxiety Disorder and Seasonal Affective Disorder (a mood disorder characterized by recurrent depressive episodes that occur at particular times of the year, usually in winter), tenebrous used of the former figuratively, of the latter literally.  In a decision which may have been an agenda item on one of the editorial committee's meeting, it was decided the acronym “SAD” would be applied to Seasonal Affective Disorder (presumably on the basis it described the sadness associated with dark, wintery conditions); Social Anxiety Disorder typically is abbreviated as SoAD and the differentiation makes sense because while sadness can be associated with SoAD, it's the prime dynamic of SAD.  Multiple uses of acronyms is of course common but within the one publication it could confuse for the editors made a wise choice.  First described in 1984, SAD was included in the revision to the third edition (DSM-III-R (1987)) as a “seasonal pattern”, a modifier applied to recurrent forms of mood disorders, rather than as an independent entity.  In the DSM-IV (1994), its status as a standalone condition was changed, no longer classified as a unique mood disorder but instead a specifier (called “with seasonal pattern”) for the “recurrent major depressive disorder that occurs at a specific time of the year and fully remits otherwise”.  In the DSM-5 (2013), although there were detail changes in terminology, the disorder was again identified as a type of depression (Major Depressive Disorder with Seasonal Pattern).  The symptoms of SAD often overlap with the behaviors & mood changes noted in clinical depression, the novelty being the condition manifesting usually during the fall (autumn) & winter when temperatures and lower and the hours of sunlight fewer, the symptoms tending to diminish with the onset of spring.

A gathering of high tech, robotic lawnmowers: Four Stihl iMows of the apocalypse.

Suggested collective nouns for lawnmowers have included “graze”, “scythe”, “lawn” & “swathe” but the most evocative was the (presumably Australian) “startyafuquer” (pronounced stahrt-yuh-fuhk-ah).  Most “high tech” lawnmowers are controlled using a cell phone app but some include the feature of a user being able to create their own voice-activation command set so “startyafuquer” could be recorded as the “start command”, the obvious companion phrase being “stopyafuquer”.

While notably less common, there are those who experience SAD during the summer and in either case it’s seen more frequently in women; SAD appears to be possible at any age but is most typically suffered in the age range 18-30.  In the US, the dynamic of the condition is illustrated by the diagnosis of SAD ranging from 1.4% of the population in sunny Florida to 9.9% in often gloomy Alaska and, after some initial scepticism, the condition was accepted as legitimate by most of the profession although there has been some contradictory research.  Although in a sense SAD has for centuries been documented in the works of poets and artists, it wasn’t until the mid-twentieth century that structured research began and it has been linked to a biochemical imbalance in the brain prompted by exposure to reduced hours of daylight and a reduction in sunlight.  It’s thought that as the seasons go by, some experience a shift in their internal “biological clock” (circadian rhythm) which induces the mechanism to become asynchronous with their daily schedule.  Predictably, SAD appears more prevalent among those living far from the equator where the conditions in winter are exaggerated.  Seemingly paradoxically, clinicians treating SAD do in some cases recommend “outdoor activities” on the basis (1) of “confronting the problem” as is sometimes done for fears (heights, spiders etc) and (2) its frequent effectiveness in countering depression.  One popular activity suggested is gardening and while many have reported it as therapeutic, those suffering from Sponeopapaaughprosebeeanthropopcacareophobia (the phobia describing the “fear of high tech lawn mowers”) would need to be cautious in their choice and handling of equipment.   

Gender lists are however not “peer reviewed” in the traditional sense (controversial as that model of academic publishing has become) so in a sense all the categorization systems are of equal validity with users free to determine which works best for them.  That’s democratic and how a classic marketplace of ideas operates but does mean it’s a field in which most are left to make of it what they will.  It would be interesting to compare a “comprehensive list” curated by academics in the now well-populated discipline of “gender studies” with the hundreds of entries which the MOGAI community hosts.  In the most recent edition of the DSM (DSM-5-TR, 2022), while there are five sub-types of specific phobias: (1) animals, (2) the natural environment, (3) blood, injections, medical procedures and such, (4) situational types (airplanes, elevators, enclosed spaces etc) and (5) other types, officially, terms like nomophobia, coulrophobia, globophobia, arachibutyrophobia etc) are no longer accepted clinical terms used in psychiatry and instances are grouped to be diagnosed as “Specific Phobia, other type”.  Remarkably, given the frequency of use of xxx-phobia in general use, only two explicitly are mentioned in the DSM and they are not unrelated: Agoraphobia (an extreme or irrational fear of entering open or crowded places or leaving one's home) and Social Anxiety Disorder (SoAD or Social anxiety).

The MOGAI community's lists of gender types are an invaluable resource but can be challenging for those suffering Albumistaphobia (the phobia describing the “fear of lists”).

Still, even if many of MOGAI’s entries might not survive an academic cull, there would be gender theorists or activists who might acknowledge the entire set because a syndrome need not be widespread to be defined as such: a single case can establish the diagnosis.  Word nerds too must have been impressed by the diversity and intricacy (if not always the grammar and spelling) because MOGAI definitions can also be mapped onto specific systems or sets of labels, such as the Celestial Gender System (based on celestial bodies) or the Restaurant System (based on restaurants and eateries).  What that has meant is that as well as serious contributions, the MOGAI community has seen the creation of new labels of dubious practical validity which, like some alleged phobias, clearly exist just because their creation was possible and fun.  Those schooled in labelling theory might also be interested because, once created and vested with the “validity” of appearing in a “gender list” on the internet, a label can gain some gravitational pull and convince readers they’ve just discovered their “true gender” identity or identities.  As patients can create the diagnosis, so the diagnosis can create the patient.

Xenogender

A xenogender identity is one in which a person's gender is connected to an aesthetic or sensory experience.  It is non-binary and applies concepts beyond traditional male, female or androgynous categories to describe a gender that cannot be contained by traditional human understandings of gender.  Xenogender claims to be all-encompassing and is this positioned as an umbrella term for identities related to abstract sources like animals, plants, concepts and imaginary or inanimate objects; the linkages need not in any way be literal or concrete and can be simply a device people use to best articulate how their gender “feels” (or “appears” for those who view themselves from beyond their own physical body) to them.  Some xenogenders are used by the neurodivergent community but the essence of xenogenderism is they cannot be exclusive and thus cannot be used in an exclusionary way.

Hallowgender

Hallowgender (or Halloweengender) is an aesthetigender in which one's gender is tied closely to “the silly part of Halloween and the Halloween aesthetic” (ie it focuses on the fun rather than the dark and scary).  The first known use of hallowgender was by Tumblr user asukazepplinsoryu in 2014.

Flags of the Hallowgender.

Left to right: (1) The original hallowgender flag, designed by an anonymous user; (2) the first alternate hallowgender flag designed by Tumblr user ask-pride-color-schemes; (3) the second alternate hallowgender flag designed by Tumblr user momma-mogai-sphinx, (4) the third alternate hallowgender flag designed by Tumblr user momma-mogai-sphinx and (5) the fourth alternate hallowgender flag designed by FANDOM user WriterThatArts.  In the ecosystem of gender-diversity, flags have become a thing; the gay liberation movement's Rainbow flags are the best-known but there are banners for many non-cisgender sub-sets and other divergencies including the still much-marginalized Objectum community.  

TFS: The Tenebrous Gender System

A fork of the MOGAI community, the TGS (Tenebrous Gender System) was said to have been created by Tumblr user Hallowgender who on 12 September 2020 published a codified version; under TGS, all sub-types are in some way and to some degree connected to “darkness and gloominess”.  All are related also to other things or concepts and that some of those might stand in stark contradiction to darkness and gloominess was noted without further comment.  In a sign of the times, TGS, with seven categories, is said to be “one of the smallest gender systems” and that reflects the recent proliferation from something which for millennia usually was represented as a binary.  Each TGS category has a flag:

Tenebrariarumian: A gender that is dark, enveloping, and colorful.  It is gloomy, calming and cold.  Exemplar: Billie Eilish (b 2001).

Tenebrasian: A gender that is dark, separating, and sullen.  It is gloomy, tumultuous and warm.  Exemplar: Lindsay Lohan (b 1986).

Tenebellariumian: A gender that is flamboyant, dark, cool, and wintry. It is gloomy, calming, and freezing as well but may tend also to fluidity and can be similar to Burlesgender.  Exemplar: Kim Kardashian (b 1980).

Tenebrationisian: A gender that is masculine, toasty, calming, and similar to the sea at night.  It is gloomy, calming, and connected to anchors, boats, and summer.  Exemplar: Alexandria Ocasio-Cortez (AOC, b 1989).

Tenebricosumian: A gender that is cautious, wintry, dark and comforting.  It is small, fluid, and flux.  Exemplar: Bernie Sanders (b 1941).

Tenebricumian: A gender that is icy, soft, watery and comforting. It is large, fluid, and flux.  Exemplar: Sydney Sweeney (b 1997).

Tenebrosumian: A gender that is icy, soft, electric and powerful.  It is large, fluid and flux as well.  It can be connected to lights in a city at night, blankets and snowy afternoons.  Exemplar: Jessica Simpson (b 1980).

Aesthetigender

Aesthetigender was said to have been coined in 2014 by Tumblr user curiosityismysin and the original description read: “a gender experience that is derived from, or the embodiment of, an aesthetic”; from that came the mission creep which saw the term evolve from a “standalone gender” to being an entire sub-category of MOGAI genders to the point where it is one of the largest.  The nature of the beast is such that within the rubric of aesthetigender it’s an irrelevance to try to determine where one ends and another begins and the extent of proliferation anyway made overlap inevitable.  As might be imagined, a category in which the imperative is “a gender which in some ways relates to an aesthetic” is so broad that probably all MOGAI genders could be made to fit under the umbrella, including terms that aren't obviously “aesthetically linked” because just as “everything is text”, in a sense, “everything has an aesthetic”.  That has to be right because the root of aesthetigender ultimately can be traced back to a rejection of gender as a binary and the nonbinary activist movement really began as something aesthetic before a conceptual framework was built.  The MOGAI community now lists over 600 known aesthetigenders and while some (like many entries in the phobia lists) are variants, jocular coinings or exercises in novelty, such is the breadth, there must be something for just about everyone; some illustrative examples are:

Abandoe: a gender similar to that of an abandoned house; could be dead, genderless or of themes being empty and intimidating.

Adorbian: a xenic alignment to cuteness or cute things.

Aesthetigxrl: a girl or woman who is also aesthetifluid.  Your aesthetigenders act as an overlay, affecting pronouns and desired presentation.  If the aesthetic is heavily aligned with a different gender, your gender might be obscured until the aestheticgender changes. Comes under the genderfluid umbrella. (Gxrl can be substituted with your main gender (bxy, boy, girl, xen, enby ect).

Ancientus: a gender that feels like it is becoming ancient and unused, regardless of whether it is or is not.

Animecoric: a gender related to animecore.

Antiancientius: a gender that feels like it is coming back from being ancient and unused to being new and used

Arcage: a gender that feels locked up in a coffin or mausoleum, it’s desolate and unused but can be revisited and used for a small amount of time.  It can also be related to coffins, cemeteries and Halloween.

Autumnusian: a slightly neutral gender related to autumn (fall), fallen leaves, oak trees, the smell of maples, rain, and/or the sun.

Bellusgender: a gender relating to anything beautiful to the user’s eye (can be flowers, pets etc).

Burlesgender: A gender that is ineffable, extremely hard to label, but is flamboyantly and fabulously androgynous.  It was first coined as Ziggystardustgender but changed due to this referencing a fictional character.

Camogender: a gender that’s hard to see on the outside, almost invisible, but very deep and full of meaning on the inside. Can be thick or thin but is always not what it appears to be.

Cosmiccoric: a gender that feels like you’re a cosmic entity, one with the universe, especially when meditating.

Crystalforestgender: a gender associated with both crystals and forests or that is easily described by both forests and crystals.

Demi-Smoke: a transcendental, spiritual gender roughly drifting to other genders that are unable to be foreseen or understood, shrouded in darkness within your inner visual.  Elevating through mystery and caused by a lack of inner interpretation and one’s dark emotional states.

Derkazgender: where you feel like parts of your gender are hidden or concealed in darkness.

Djender: a gender that is harsh and jagged.

Elegender: a gender up to interpretation by individuals, but in essence is an ethereal gender that is unable to be understood by either the individual or others; a gender that cannot be explained; a dainty, elegant, or delicate gender.

Estetikgender: when your gender is influenced by your current aesthetic.

Fatugender: a useless gender.

Fractigender: a gender identity characterized by different genders occurring with different intensities, and yet still connected (either through expression, interpretation, or being experienced simultaneously).  This identity is based on the Latin fractus (broken), perfect passive participle of frangō (break, fragment), the idea being a pattern that repeats on smaller and smaller scales, and different locations.

Genderabyssalis: a gender that is dark, deep, and abyssal.  It may be connected to darkness, dimness, and cold nights.  It can be masculine or neuter-aligned, but need not be.

Genderamburo: a gender that feels slightly scorched or burnt.

Genderardere: a gender that feels like it has been burnt/scorched, but still remains.

Genderatrum: a gender shrouded into darkness. It feels gloomy and unwelcoming, isolating itself from other genders.

Gendercalefecere: a gender that feels like it warms, and then quickly cools again.

Gendercimiterium: a gender related to graveyards.  It feels buried underneath other genders, and trapped forever more.

Genderclock: a xenogender related with time and clocks.

Gendergothica: a gender that feels Gothic or related to Gothic architecture or literature.

Gendermortes: A gender that fades into death.

Gendermortuss: A gender that feels dead or is barely clinging to life.

Gendernoir: A gender related to the noir aesthetic.

Genderplush: A gender related to teddy bears.

Gendertextus: a gender that is woven into other genders.

Icegender: A cold gender that's disconnected from emotion

Lolitagender: A gender related to Lolita fashion.

Magikavine: A gender related to the color purple, dark circus aesthetics, and magic.

Mermaidcoric: A gender related to mermaidcore.

Multioculaec: a gender related to having or wanting multiple eyes (Based off Wingphinaec).

Naufragiumgender: a gender simply abandoned.  It is similar to a shipwreck in that it just plainly disappears for a while, later to be rediscovered by advancing into the depths of gender.

Necrogender: a gender that used to exist but is now 'dead' or nonexistent.

Nightshadegender: when your gender feels ominous and dangerous if wrongly handled.

Noirgender: an aesthetic gender based on being goth.

Noxnidorian: A gender that’s related to the night and specifically the smell of the night.

Nymphetic: genders relating to the nymphet/doelette/coquette/faunlet aesthetic & fashion, without k!nk attatched

Ophthalmogender: a gender described by your own eye and its characteristics at some point.

Opscugender: a dark, murky gender, hard to describe or see.

Pastelgothcoric: a gender related to pastel gothcore, or just pastel goth in general!

Petrichic: a xenic-alignment with rain, storms, and water.

Pictogender: a gender that can only be described through imagery. A pictogender individual might only be able to describe their gender with icons, symbols, emojis, color gradients, or some other visual.

Pinkcoric: A gender related to pinkcore.

Punque: a gender characterized by the punk aesthetic, fashion, culture, music and attitude.  Can be used as a descriptor or as a noun.

Puppetic: A xenogender related to puppets/marionettes.

Sadcoric: A gender related to sadcore

Sapphiregender: A gender that is aesthetically related to sapphires, a gender that is feminine, non-binary, and vaguely fluid.

Savmysterius: a masculine xenogender that feels shrouded in fog and is hard to define. It’s slightly fluid, golden and ancient, and draws influence from many sources, including: crystals & forests, stars & death, old gods & demons, angels and the fae.

Sexygender: a gender that is very, very sexy

Shampooium: a dermagender that feels sudsy like shampoo, and makes other genders feel healthy as well.

Shipwreckian: a gender somehow connected to shipwrecks, the deep sea, shades of blue and warm ocean waters.

Sliwarmasix: a slightly warm gender, it hovers slightly above other genders and never flares up.

Somnigender: a gender identity related to, dependent upon, or inexorably connected to a feeling of sleepiness or tiredness. Alternately, it can refer to a gender that is difficult or impossible to perceive or identify due to feelings of sleepiness or tiredness.  Not a narcolepsy/insomnia-based neurogender, just general sleepiness.

Squishyic: a xenogender related to squishies.

Starboy: A gender related to boasting, cyberpunk, and crime.

Tenebric: a gender that feels cold and dark; it smells of moss and nature.

Traumacoric: A gender related to traumacore.

Urbisgender: a gender built like a city, composed of many, many parts that all function to help one another; full of many small parts and things to discover.

Vampcoric: a coric gender related to vampirecore.

Wanderlust Gender: a labyrinthine, eerie gender that’s impossible to navigate or map, but which causes no anxiety.  This gender is fun to explore even if it’s easy to get lost in.

Windowgender: a gender feeling like the space between the glass and the screen of the window thus either a free-flowing gender or for those who feel their genders are transparent!

Wingphinaec: a gender related to wings or having wings!

Witchcoric: a xenogender related to witchcore.

Xenoirgender: A gender based in emo, scene and other offshoots of goth.

Zombiecoric: a masculine, feminine or neutral gender based around zombiecore; feels decayed & dark, which isn’t necessarily a bad thing.

Appellate

Appellate (pronounced uh-pel-it)

(1) Of or pertaining to that which can be reviewed by a power or authority vested with the necessary jurisdiction.

(2) A court, tribunal or other body having the power or authority to review and decide appeals made against decisions issued by subordinate individuals or institutions; that which legally can be appealed to.

1726: From the Classical Latin appellātus (called upon, summoned), past participle of appellāre (to appeal) and perfect passive participle of appellō (address as, call by name), the construct being ad (to, towards) +‎ pellō (push; impress).  The noun appellant (one who appeals from a lower to a higher court) dates from the 1610s, from the Anglo-French & French appellant, noun use of present participle of the French appeller (make an appeal), from the Old French apeler, from the Latin appellare (appeal to).  Appellate is an adjective and appellant is a noun; the noun plural is appellants.

Unrelated to the hierarchy of courts, there are words used formal grammar and linguistics including the noun appellative (a common noun; an epithet), the adjective appellative (of or pertaining to an appellative noun or common noun; of or pertaining to ascribing names), the noun appellativeness (the state or quality of being appellative), the adverb appellatively (after the manner of appellative nouns; so as to express whole classes or species and the noun appellativization (the process of a proper name becoming a common noun (such as hoover; kleenex; google etc)).  The antonym is proprialization (White House, Grand Canyon etc).  The noun appellation (designation, name given to a person, thing, or class) entered English in the mid-fifteenth century, from the twelfth century Old French apelacion (name, denomination), from the Latin appellationem (nominative appellatio) (an addressing, accosting; an appeal; a name, title), the noun of action from the past-participle stem of appellare (address, appeal to, name).  An appellation is a descriptive and specific term (Joan of Arc’s appellation was Arc; John the Baptist's was Baptist while those who were most associated with the political discussions which culminated in the formation of the United States of America (USA) are given the appellation “Founding Fathers”.  An appellation differs thus from an official or honorary title such as earl, bishop, general, professor etc but technically, these too are appellations.  The adjective appellative dates from the early fifteenth century (of a noun, serving to name or mark out, common (as opposed to proper))," from the Latin appellativus, from appellat-, past-participle stem of appellare (address, name, appeal to).  As a noun, it was in use by at least the 1590s in the sense of “a common” and by the 1630s as a “title or descriptive name”.

Courts of appeal

Appellate courts, usually styled as courts of appeal, are those vested with the jurisdiction to an appeal from a subordinate court within the same hierarchy.  In Australia, as a general principle, the court system exists in three layers (1) a trial court, (2) an intermediate appellate court and (3) a final court of appeal although variations exist and appeals from lower courts are not always of right; in many cases an application for leave to appeal can be declined.  Details of appellate jurisdiction in English courts appear in Sir William Blackstone's (1723–1780) Commentaries on the Laws of England (1765–1769), a matrix which has since been a thing of repeated change.  The hierarchical nature of the appellate food-chain is of significance because ultimately it's the final stage which is decisive: A case might for example be heard by eleven eminent judges, one in the supreme court at first instance, three on a court of appeal and seven at a high court so if the first appeal is decided 3-0 and the final 4-3 then one party can have enjoyed the concurrence of 7 of the 11 yet still lose.  That's how the appellate system works.

The Australian court systems are now unitary which means that, depending on the law(s) involved, the avenue of appeal lies to a state, territory or Commonwealth court, appeals to the Privy Council (actually the Judicial Committee of the Privy Council (JCPC)) in London sundered for Commonwealth matters in 1968 and for those involving the states in 1986 by the Australia Acts although there is one historic relic.  Section 74 of the constitution provides for an appeal from the High Court of Australia (HCA) to the the Privy Council if the court issues a certificate that it is appropriate for the Privy Council to determine an inter se (a case concerning constitutional relations between the Commonwealth and one or more states or between states) matter.  The only such certificate was issued in 1912 and in 1985, the High Court judges (unanimously) observed that the power to grant such a certificate “…has long since been spent… and is obsolete".  However, it’s there with full legal force so, in the strict constitutional sense, an appeal from the HCA to the JCPC, however unlikely, remains possible.

In the matter of Grand Theft Auto (GTA5): Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018)

Truly a martyr, Lindsay Lohan hasn't had much luck in appellate courts.  In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

Beware of imitations: The real Lindsay Lohan and the GTA 5 ersatz, a mere "generic young woman".

Concurring with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey (b 1951; associate judge of New York Court of Appeals from 2015-2021) wrote in his ruling.  Judge Fahey's words recalled those of Potter Stewart (1915–1985; associate justice of the US Supreme Court 1958-1981) when in Jacobellis v Ohio (378 U.S. 184 (1964) he wrote: “I shall not today attempt further to define… and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it…”  Judge Fahey knew a basic white girl when he saw one; he just couldn't name her.  Lindsay Lohan's lawyers did not seek leave to appeal.

In happier times: Gladys Berejiklian (b 1970; Premier (Liberal) of New South Wales 2017-2021) & Daryl Maguire (b 1959, MLA (Liberal) for Wagga Wagga 1999-2018).

Also not having much luck with a matter taken on appeal is former New South Wales (NSW, Australia) Premier Gladys Berejiklian, compelled in 2021 to resign after being found to have committed an act of Billigung, her crucial phrase in a secretly recorded conversation being "I don't need to know about that bit" when her then (secret) lover began to tell her some details of his dubious deals.  To that pertinent observation, Mr Maguire replied "No, you don't".  The suggestion is the premier failed to declare a conflict of interest when dealing with the allocation of taxpayer funds which would be to the benefit of Mr Maguire.

The German Billigung is not so much hard to translate as able to be translated in a number of senses; context is everything.  The way it is used to mean “looking away; avoiding specific knowledge of something which one knows or suspects is happening” was clarified in 1977.  Albert Speer (1905-1981, Nazi Minister for Armaments 1942-1945), the convicted war criminal, had always denied any knowledge of the holocaust and was displeased when sent the English translation of a profile to be published in Die Zeit magazine in which Billigung had been rendered as his “...tacit consent...” of the final solution.  This he corrected, explaining Billigung in this context meant “looking away”.  This meant he averted his gaze from the worst crime of the criminal régime he served in order to be able to deny he knew of it.  Speer, predictably, was able to summon a word to explain this too: Ahnumg (the sensing of something without quite knowing exactly what).  He did at least concede the implication of his translation “...is as grave…” as the original, one biographer noting that had Speer said as much at his trial “…he would have been hanged.”  Other historians and some lawyers disagreed with that but it was an assertion the author was unable to pursue.  When she tried to nudge Speer a little further, pointing out that for one to look away from something, one must first know it's there, he didn’t deny what he’d earlier said but added they “…must never speak of it again".  The moment passed and within weeks he would be dead, dying "on the job" in police slang.  Some have noted the feeling Speer conveyed of always somehow longing to confess his knowledge of the holocaust.  He so often came so close to admitting he knew what he'd always denied, as if the last great act of his life would have been to admit worst of the the guilt he convinced himself (and some others) he'd evaded when the International Military Tribunal (IMT) at the first Nuremberg  Trial (1945-1946) convicted him of war crimes & crimes against humanity (counts 3 & 4) and sentenced him to twenty years imprisonment.  Had he then told the truth, he'd have been hanged.

The words used by Ms Berejiklian: "I don't need to know about that bit" are best understood in modern use as an attempt to manufacture "plausible deniability" and may be compared with how Herr Speer described his response in mid-1944 to being warned by a friend "never, under any circumstances" "to accept an invitation to inspect a concentration camp in Upper Silesia".  Speer's friend explained that at that place he'd "...seen something there which he was not permitted to describe and moreover could not describe".  Having received what he claimed was his first knowledge of Auschwitz, Speer asked no questions of anyone, later admitting: "I did not want to know what was happening there".  That was what he later called Billigung.  There's obviously quite some difference between knowledge of the Holocaust and the dodgy dealings of a politician but the Billigung principle is the same. However, the former premier may have been comforted that unlike the IMT at Nuremberg, the ICAC wasn't vested with capital jurisdiction so there was that.

Enjoying their pipes: Albert Speer in conversation with his lawyer Dr Hans Flächsner (1896-dod unrecorded) and a legal associate, Nuremburg, 1945.     

On 1 October 2021, the NSW ICAC (Independent Commission against Corruption) announced an investigation into the former premier's conduct in office, later handing down a finding she had committed “serious corrupt conduct”.  Interestingly,  despite that, the ICAC made no recommendation criminal charges be pursued because the evidence Ms Berejiklian was required to provide to the ICAC wouldn’t be admissible in a court because there, the rules of evidence are different and a defendant can’t be compelled to provide an answer which might be self-incriminating.  In other words a politician can be forced to tell the truth when before the ICAC but not before a court when charged.  That’s an aspect of the common law’s adversarial system which has been much criticized but it’s one of the doctrines which underpins Western law where there is a presumption of innocence and the onus of proof of guilt beyond reasonable doubt lies with the prosecution.

Ms Berejiklian challenged the findings and validity of the ICAC’s findings, her appeal heard by the NSW Court of Appeal, the state’s highest appellate court.  Her grounds for the appeal were claims (1) the ICAC made errors of law and (2) their report may have been delivered outside its legal authority due the expiration of the term of one of the ICAC’s assistant commissioners prior to the report being delivered.  In a split (2-1) decision handed down in July 2024, the court dismissed the appeal (with costs), the dissenting judge finding that because one assistant commissioner was engaged as a consultant after her term had expired (a role which included assisting in drafting the final report and writing assessments of the credibility of witnesses including Ms Berejiklian) what they did was act outside the limits of the authority conferred on a consultant.  The majority disagreed, finding the appointment as a consultant was in all ways “valid and effective” and also rejected the other grounds cited in the appeal.

So the ICAC’s finding of “serious corrupt conduct” stands.  Responding to the court’s decision, Ms Berejiklian didn’t mention that “c-word”) but thanked the court for its consideration given “...the limited nature of a challenge that can be made to ICAC findings by any citizen.  As the court noted, the ICAC Act does not permit a ‘merits’ review of the findings of ICAC.”  She also noted the split decision and concluded “Serving the people of NSW was an honour and privilege which I never took for granted. I always worked my hardest to look after the welfare and interests of the people of NSW.” 

Appellate courts, the hair police and black letter law

Appellate courts are best known for their rulings in cases of great public interest or legal significance; in the former category these typically are those involving celebrities, sex or anything especially gruesome and in the latter, constitutional matters.  There are exceptions (and some appellate courts do also function in certain specialized matters as courts of first instance) and the US Supreme Court (USSC) has agreed to hear parking-ticket and other minor matters if the law under which a conviction was obtained happened in a jurisdiction where the offence was deemed one of absolute liability and an appeal not permitted.  In those matters, the court held that in the US, a legal principle existed that the state could not convict a citizen of something without granting a means of appealing the decision.  Courts of appeal also hear the quirky and bizarre and in 2022 an appeal was lodged in the Supreme Court of Japan, a young woman in Osaka Prefecture seeking to overturn a ruling from the Osaka High Court that her former high school’s rules and guidance forcing her to dye her brown hair black were lawful.

The young lady had in 2015 enrolled in a high school (operated by the prefectural government) and in the original case (decided by the Osaka District Court) she alleged teachers had at least weekly told her to dye her hair black, instructions which continued despite her explanation she was born with brown hair and it was her natural color.  In September 2016, she began refusing to go to school, her suit against the prefectural government alleging she had suffered mental stress.  In 2021, the district court ordered the prefectural government to pay ¥330,000 (US$3,100) to the former student for certain actions (such as such as removing her name from school rosters after she stopped attending) but ruled also the school’s enforcement of the hair-related regulation exceed the discretionary authority it had been granted.  The plaintiff took the case to Osaka High Court (the first appellate layer) which held that, on the basis: “a wide range of discretion must be permitted for school education in order to allow diversified educational guidance in line with individual and collective conditions”, the ruling of the district court was upheld.  The case was well publicized and attracted much public interest (and comment) and, presumably nudged, the Osaka’s Prefectural Board of Education undertook a survey of rules at high schools under their control but concluded the “compulsory black hair” rule was “necessary”, issuing a statement saying “We will meticulously explain the necessity in order to gain understanding from students’ parents”.  That didn’t please the by now bolshie (former) schoolgirl and in her appeal to the Supreme Court (the next appellate layer) claimed banning brown hair was “unconstitutional”, citing Article 13 of Japan’s Constitution, which stipulates people’s right to pursue happiness.

The case attracted the interest of Doshisha University’s Professor Kayoko Oshima (b 1959) who explained the substantive matter was more the repeated demands the girl “dye her hair black rather than the rule itself”, his point being that the purpose of the rule was to prevent the dying of hair to ensure lurid greens or blues (or, God forbid, blondes) weren’t seen and in the case of someone with natural brown hair, the ruling shouldn’t be enforced.  In other words, for these purposes there should be the legal fiction that “brown is black”, something like the “honorary white” status the Apartheid-era South African government would sometimes grant to visiting PoCs (persons of color; typically athletes or politicians).  The rule, according to the professor, was thus rational but, in certain circumstances, its enforcement was not; an example of the “unintended consequences” which sometimes occur in the application of “black letter law”.

While the matter proceed through Japan's not especially rapid civil system, news organizations began reporting other interesting rules school impose on their female students including mandating white underwear and banning pony-tails on the basis that were the nape of the neck so scandalously to be exposed, it would risk “sexually exciting” male students.  Hair color, length and pony-tails are subject obviously to visual inspection but it's not clear if the underwear dictates are enforced by the same method.  The wide publication of these rules drew much derision and in response, early in 2022, the Tokyo prefecture announced those with natural hair other than black would no longer be required to dye to conform and that underwear need no longer exclusively be white.  The Tokyo authorities took an omnibus approach to reform, announcing also that a wider range of hairstyles would be permitted including the “two-block” (short on the sides and back while long on top) which was interesting because like the also permitted bob, the risk of napes being flaunted was obviously there.  Legal observers commented it was an example of a typically Japanese attempt to be flexible yet not be seen over-turning long defended-rules.  Thus the pony-tail proscription stands even though its rationale was undermined by the new permissiveness extending to the bob; again, black letter law.  Collectively, the “draconian rules” are known in Japan asブラック校則 (buraku kosoku) (black rules) and they have existed since the 1970s when it was noted “foreign influences” were beginning to intrude, resulting in previously unknown "behavioral issues".  As well as hair color and seductive pony tails, the most rigorously policed seems to have been skirt length, particular attention devoted to detecting the devious trick of “skirt-folding”, the standard workaround for those seeking the “above-knee look”.  Knees, it would seem, are thought as potentially provocative as the naked nape of the neck.

Ai Nishida San (b 1992) as she is (left) and as her school decided history would remember her (left).

Interestingly, high-tech Japanese school administrators have proved that even if the day comes when they can no longer make black hair compulsorily, with a little judicious digital editing, retrospectively they can make it seem as if uniformity is maintained.  In 2021, one student circulated a “before & after” pair of images, one her school photograph in untouched form (left), the other as it appeared in her school’s yearbook (right), the latter with hair in an acceptably shiny black.  Commenting on the editing, the former student said the message conveyed by the practice was it “…enforces the idea that black straight hair, a stereotypically Japanese look, is right”, the obvious implication being anything else is wrong and thus un-Japanese.  Her school had actually been accommodating, telling her that because it was her natural color, she was exempt the attention of the hair police and she thought little more about it until she received her 2007 yearbook when she realized she had been rendered “more Japanese”.  Ai Nishida San called the school’s actions “racist” and while, in the narrow technical sense, it might be more correct to suggest the motives were “racialist”, it’s certainly either and hardly in the spirit of the submission Japan’s delegation made to the Paris Peace Conference (1919-1920), arguing for racial equality to be recognized as one of the core concepts underpinning international relations in the post-war (which turned out to be the inter-war) era.