Writing on behalf of a coalition of organizations and allies that work to promote fairness and equality for the LGBTQ+ community, we recently sent a letter to the Michigan Supreme Court supporting a proposed rule change that would apply to the use of personal pronouns in all state courts. It may sound like arcane stuff to some, but it is a much-needed change that’s being considered at a critical time.
The proposed amendment would require judges and their staff to use a person’s chosen pronoun and name when addressing attorneys and other people appearing before them. The same would be true with written communications. It would also allow attorneys to use their, and their clients’ personal pronouns in documents.
You can help the court make the right decision and change its rules regarding the use of personal pronouns by going to the Michigan court public comment page and making your views known before the comment period ends on May 1, 2023.
Adoption of the proposed amendment will send an important message to Michigan’s transgender and gender non-binary community: you will be accorded the same dignity, courtesy and fairness given to cisgender persons, and you can expect equal access to justice in Michigan courts. At this critical time, when so many of our public institutions (including the Michigan judiciary) are trying to invest in a renewed commitment to equity and inclusion, the proposed amendment should be adopted.
No one would question the propriety of referring to cisgender litigants with appropriate male or female pronouns. The same should be true for everyone for this reason: A pronoun is not merely a preference, it is a statement of fact for all people, regardless of gender.
Why It’s Important
To understand the significance of addressing parties and attorneys in accordance with their chosen pronouns and names, it is important to understand gender identity and the transgender community. “Transgender” is an umbrella term that refers to individuals whose gender identity is different from the sex assigned to them at birth. According to a 2016 Williams Institute study, approximately 33,000 transgender people reside in the state of Michigan.
The appropriate use of transgender persons’ pronouns in our courts acknowledges the existence of transgender people, aligns with the mainstream medical and scientific consensus regarding the importance of using pronouns that are congruent with the person’s gender identity, and accords them the same dignity afforded to other litigants.
Making this change will also help assure people subjected to widespread discrimination and abuse that they won’t be facing a court system that is inherently biased against them. It is a message that needs to be sent, especially now.
A recent national survey found that 63% of the transgender people interviewed have experienced a serious act of discrimination—one that would have a major impact on a person’s quality of life and ability to sustain themselves financially or emotionally. The most recent FBI hate crimes report shows that hate crimes against transgender people (particularly transgender women of color) have increased over the past several years.
The same community is also under attack by politicians claiming to be the champions of conservative values. But in our courts, everyone is entitled to fair and impartial treatment—regardless of which ways the political winds are blowing.
Political Attacks on the LGBTQ+ Community Increasing
According to the Human Rights Campaign, 2022 surpassed 2021 as the worst year yet for anti-LGBTQ legislation in recent history. Lawmakers in state legislatures launched an unprecedented war on the transgender community with bills that included criminalizing providing lifesaving medical care to transgender youth, prohibiting transgender girls from being able to participate in school sports in accordance with their gender identity, and denying trans people the ability to obtain accurate birth certificates.
The beginning of 2023 already has seen twice as many anti-trans bills introduced, including legislation that prohibits transgender people from being able to use public restrooms in accordance with gender identity. The current state legislative session has seen more than 350 bills introduced in 36 states, according to new data released by the Freedom for All Americans campaign’s open-source site that tracks proposed anti-transgender legislation.
Discrimination against transgender people also extends to the courts. In training materials developed by Lambda Legal, 33% of transgender litigants report hearing judges, attorneys, or other court employees making negative comments about their gender identity and or sexual orientation (the number increases to 53% for transgender litigants of color).
Lambda reports hearing from trans and non-binary litigants “who have been treated disrespectfully by judicial officers -- including experiences of being misgendered, turned away, mocked, denied appropriate legal representation or criminalized disproportionately. We know of judges …. who have laughed out loud in open court because a transgender person asked for the respect of being addressed with their correct pronouns.”
Given the mistreatment of transgender people by the courts, it should not come as a surprise that Lambda’s report also shows that only 28% of transgender and gender non-conforming people surveyed trust the courts to provide fair treatment. Overall trust in the courts was found to be lower than trust in the police, where significant harassment and mistreatment also occurs.
Code of Conduct
Michigan’s Code of Judicial Conduct requires both judges and court staff to treat litigants with courtesy and respect:
“Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect. To the extent possible, a judge should require staff, court officials, and others who are subject to the judge’s direction and control to provide such fair, courteous, and respectful treatment to persons who have contact with the court.”
It is the responsibility of Michigan judges to ensure access to our courts and equal treatment under the law for all people, including transgender people. When people participating in our legal system feel unsafe or uncomfortable because of their gender identity, access to justice and full participation in our democracy are undermined.
It is so much more than a symbolic issue.
Pronouns and Identity
A person’s identity, including their name and pronouns, is a powerful, central element of someone’s dignity and humanity. When a judicial officer refuses to acknowledge someone’s pronouns, they are asserting a power to deny their identity and effectively erase them from our society. Using the articulated pronouns of litigants and their attorneys, by contrast, is a positive start towards equity and inclusion in Michigan’s courts.
We’re not the only ones drawing attention to this important issue.
A number of organizations have developed educational materials for the purpose of training both judges and court staff regarding cultural competency, which include the importance of the use of pronouns as a form of access to justice. Similarly, advocates in states such as New York have concluded that courts are duty-bound to acknowledge the requested pronouns of all litigants and parties before them, in both pleadings as well as inside the courtroom, as a vital component of equal access to justice.
Adopting a rule on pronoun usage would align with consensus in the scientific and medical community regarding transgender identity and gender dysphoria, would expand access to our courts and public confidence in the fairness of our justice system, and would ensure that persons who come before a court can do so with an expectation that they will be treated with courtesy and respect.
Jay Kaplan is staff attorney for the ACLU of Michigan’s Nancy Katz & Margo Dichtelmiller LGBTQ+ Rights Project.