The Michigan Supreme Court has voted to require judges and court personnel to address a transgender-identifying litigant or attorney with thier preferred pronouns, including "they," if requested to do so by the person.
The rule, which goes into effect on Jan. 1, 2024, also will allow judges to avoid pronouns and refer to someone by their role in the case, such as attorney or plaintiff, followed by a last name.
Because an individual’s gender identity may not be readily discernible visually, the parties and attorneys may now be given the option of including their personal pronoun preferences in the captions of the initial court documents that come before a judge.
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The idea is to avoid the awkwardness of a judge having to ask a litigant or attorney about their gender identity in trying to determine how to address the individual.
“I believe it is perfectly within the realm of this Court’s authority to require judges who choose to use identifying pronouns to use those requested by the parties,” Justice Kyra Bolden wrote in her concurrence with the amendment to the Michigan Court Rules to allow the practice.
Sending a Message
“While Michigan is the first state to amend its court rules to expressly include such comprehensive protection for personal pronouns—history is made by being first," Justice Bolden wrote.“We are sending a signal that all members of the public are entitled to inhabit public spaces on equal terms. ... Adopting this amendment makes Michigan courts more welcoming and inclusive for all,”
The court’s action on Sept. 27 was triggered by the receipt of a letter in 2022 from the left-leaning American Civil Liberties Union of Michigan and several other pro-LGBT organizations that were urging reform.
The groups asked the state's High Court to change the way that the judicial system in Michigan interacts with transgender-identifying people.
The ACLU letter started a months-long process that included the court taking written comments from citizens and holding a public hearing on the issue.
Rules set by the state Supreme Court govern the practices of all lower courts in Michigan.
Democrats Toeing Progressive Party Line
The four justices voting for the amendment were Justices Richard Bernstein, Kyra Bolden, Megan Cavanagh, and Elizabeth Welch—all Democrat nominees elected to the bench by voters on a statewide, nonpartisan ballot.Justice Welch wrote in her opinion supporting the amendment that the use of preferred personal pronouns by judges and their staff would promote a sense of fairness, enhance the perception of the court’s impartiality, and “bolster public confidence” in the justice system.
Language Is as Usage Makes It
Addressing the frequently raised grammatical objection to the use of the plural personal pronoun “they” by individuals identifying with a nonbinary gender, Justice Welch said that its use “may require more intentionality and a bit of practice” on the part of the older generation.“While it may take some additional time for some to adjust to the change, society has navigated grammatical shifts many times through the centuries,” she wrote.
Dealing with the possibility that a court record may be confusing if the underlying evidence identifies a party by one gender, but that person prefers the use of a different pronoun in court proceedings, Justice Welch stated that the highest court in the land seems to have gotten by.
“In 1994, the United States Supreme Court avoided using gendered pronouns and procedural labels for a transgender inmate who alleged discrimination based on their gender status,” she wrote.
Do’s and Don’ts
Rather than the amendment causing confusion in court records and legal documents, particularly those involving cases of sexual assault, Justice Bolden contended that it would actually help members of the LGBT community and those who are gender nonconforming by providing “clarity” to the court about their gender preferences.The requirements of the newly adopted amendment don't apply to the parties to a case, attorneys, or witnesses, and don't force judges to use preferred pronouns.
Justice Bolden stated in her concurrence, “What this amendment does is require judges who are provided with pronouns identified by a party or attorney to refrain from using nondesignated pronouns.”
In the event that some judges and court employees object “to honoring a person’s specified pronouns on the basis that they do not personally agree with the notion that someone can switch genders or be nonbinary,” Justice Welch said that the new rule allows for the use of other respectful, gender-neutral, means of address.
Dissenting Opinions
Republican-nominated Justice Brian Zahra wrote in his dissent that the rule “will create problems and will only cause confusion within our courts.”Occurrences of a court being requested to use a preferred personal pronoun that's inconsistent with the biological sex reflected on the litigant’s birth certificate are “decidedly rare,” and the rule change is “entirely unnecessary,” he wrote.
“The first noted instance in our courts was in December 2021, when a Court of Appeals judge (in People v. Gobrick) wrote a concurring opinion in which he explained why he would not abide by a criminal defendant’s preference to be referred to by the pronouns ‘they’ and ‘them,’” Justice Zahra said.
In joining Justice Zahra’s statement of dissent, Republican-nominated Justice David Viviano identified the same Court of Appeals opinion as the catalyst for the ACLU’s 2022 letter that led to the creation of the current amendment.
Pro-LGBT advocacy groups have frequently cited that opinion as a reason that the reform of court proceedings is needed.
More Harm Than Good?
Justice Zahra raised concerns about possible free speech and religious liberty infringements, and noted that any inadvertent and repeated slip of the tongue by a judge could result in disciplinary action from the Judicial Tenure Commission.He contended that the new court rule presented “an open invitation to abuse by litigants eager to gain any measure of control over their fight.”
Injecting grammatical gymnastics, confusion, and distraction into legal proceedings may result in mistrials and cause trauma for victims in criminal trials, Justice Zahra said.
He said that the final draft of the amendment adopted by the Democrat majority of the justices provided “no basis for the judge to ensure a clear record under circumstances when a private citizen (involved in the proceeding) refuses to acknowledge another’s preferred personal pronouns."
“The result would be a record littered with inconsistent usage of pronouns to identify the same person,” Justice Zahra said.
“The majority’s good intentions on this matter will only impede the efficient administration of justice in our courts.
"The rule will lead to unnecessary confusion at trial and on appellate review."
Justice Viviano wrote that the purpose of his dissent "is to demonstrate the foolishness of judges taking any stance on this or any other contentious political topic, especially when doing so is unnecessary."
“We should endeavor to remain neutral on pressing political topics and refrain from any policy positions on them,” he wrote in his dissenting opinion.
By taking sides in a political debate through adjudication and administration, and thereby helping one party to achieve its political ends, “the Court will not earn the public’s trust, nor should it,” Justice Viviano said.
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