The “sticks and stones” childhood rhyme had good intentions. But it’s wrong. Words can hurt people. And they do. People remember how they felt.
Mention “words” and the “law” and many will think of: plain language, inline citations or footnotes, plead or pled, and so on.
But what about noninclusive words?
Those that are not person-first?
Words that can harm, either through indifference or by intent?
What are those words?
How often do these words show up in court rules, court writings, court forms, websites, public notices, and the like?
How good is our awareness?
Some are talking about it. And acting.
Earlier this month I had the good fortune to attend the Language in the Courts webinar sponsored by the Berkeley Center for Law & Technology and the Berkeley Judicial Institute. Federal Magistrate Judge Allison Claire and federal Magistrate Judge Mustafa Kasubhai considered how courts should strive for more inclusive language, and why that effort matters (both to those coming before the court, and for the court’s integrity). The conversations were practical and excellent. I am grateful that they posted the video online.
On a different day, an informative and well-organized webinar was facilitated by the State Bar of Michigan, the State Appellate Defender Office, and the Michigan Department of Corrections. Impacted individuals participated in some panels. It was powerful to notice how impacted individuals volunteered the importance of person-first language in their journey and shared examples. It was not an agenda-discussion item but they emphasized its importance.
Yes, this is relevant.
I wanted to learn more after these back-to-back experiences. It’s easy to snicker at Michigan’s 1963 constitution using “he” as to supreme court jurists. Const. 1963, Art. VI, § 6. But what about when a New York jurist in 2021 must judicially order that future notices will not begin with ”Gentlemen”? (Fact-check: True on both counts.)
Public confidence is the courts’ only currency—and right now it’s on the decline.
Findings for 2021 indicate that public trust in the courts and other institutions is waning. In this year’s survey, 64 percent of respondents said they had either a great deal of confidence or some confidence in their state courts, down from a high of 76 percent in 2018.(NCSC, 2022)
And while many courts are separated into jurisdictional or subject-matter silos, those differences do not matter to the public. A bad experience in one setting will spill over into one’s impression about the next judge or court. Stories of experiences shared by other family members or friends also mix into the public confidence pool.
An example of mistrust’s downstream costs was shared by the Urban Institute (writing about eviction diversion in 2021):
Tenants’ lack of trust in the systems and resources in place, in combination with their fears and anxiety around eviction, makes for challenging circumstances in which to provide support. If tenants do not access resources through the local government and court system because they do not trust those resources, then the operationalization of those resources might need to be reconsidered so they can be used as intended.(The Urban Institute, 2021)
A negative court experience could also explain why some served persons refuse to appear in court when sued on a different matter in the future. We are interconnected even when we nurture a culture of exclusion.
The working list
My research and studies continue. A frequent disclaimer from the sources: The conversation is ongoing; terms and phrases are fluid and things can change in the future.
With those qualifications in mind, so far, the terms and suggestions I’ve collected are grouped among different categories:
- Criminal justice
- Race/Ethnic ID
- Socioeconomic status
I’ve put them together in this six-page table. The last page (page 7) is a quick and dirty list of the consulted resources. I welcome your thoughts and any other helpful resource suggestions. I plan to refer to this in my work and build on it over time. It is possible that some folks will have good-faith differences with some suggestions. That’s okay. This is an in-progress dialogue.
(Spoiler alert. I ran the list against Word’s inclusive grammar-check features. Word did not have many hits against this list.)
Update: After this was posted, singer Lizzo volunteered an example of an ableist word in one of her new songs.
And she did re-record it.