Lori Shemka

Three reasons why a proposed Michigan court rule that would invite and recognize self-identified pronouns does not offend the Constitution.

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“If the judge wants everyone to respect and adhere to their pronoun of ‘Your Honor’ they must give the same respect they are receiving.” — Johanna C. Szalankiewicz’s written comment to the Michigan Supreme Court supporting ADM 2022-03
“When you meet a dog on the street, the owner might correct you and tell you the pet’s preferred pronouns. The same respect should be shown to our fellow humans in a court of law.” — Mary Hartman written’ comment to the Michigan Supreme Court supporting ADM 2022-03

The Michigan Supreme Court proposal: Party and attorney pronouns would be allowed on the first part of every document caption under the Michigan Supreme Court’s recent published-for-public comment ADM 2022-03 proposal. And . . .

Parties and attorneys may also include any personal pronouns in the name section of the caption, and courts are required to use those personal pronouns when referring to or identifying the party or attorney, either verbally or in writing. Nothing in this subrule prohibits the court from using the individual’s name or other respectful means of addressing the individual if doing so will help ensure a clear record.

[Post update: Here is the written comment I filed with the court on February 6, 2023. It was twice favorably mentioned by Trent Collier in his separate written comment].

A practical approach since first names are often gender-ambiguous: Preferred pronoun listings are often helpful because “gender” cannot be assumed from many first names. Casual examples include (spoiler alert—five are sitting Michigan judges):

Don’t just take my word for it; study the Social Security Administration’s (SSA) data: The SSA posts different baby-name data and trends on its website and they are categorized by male and female births. The female and male baby names that increased in popularity from 2020 to 2021—again proving that gender cannot be assumed from one’s name alone—were:

  • Ari
  • August
  • Azariah
  • Baylor
  • Bellamy
  • Briar
  • Denver
  • Drew
  • Ellis
  • Jamie
  • Kai
  • Layne
  • Legacy
  • Lennon
  • Oakley
  • Ocean
  • Palmer
  • Quinn
  • Reign
  • River
  • Rory
  • Rowan
  • Sage
  • Salem
  • Shiloh
  • Sutton
  • Tatum

The Michigan Supreme Court’s proposal is a practical approach to an actual workflow problem: Parties and counsel including their pronouns in court filings is not a new trend. The practical problem is that any pronoun preferences are often listed in a filing’s less-obvious footnotes (not the first part of the document as the proposal would allow).

Pending Michigan Supreme Court case examples of “buried” pronoun preferences include:

  • Application for Leave to Appeal at n 1, People v Milton Lee Lemons, Michigan Supreme Court (Docket No. 163939) filed January 12, 2022 (“Milton Lemons now identifies as female and will be referred to throughout this Application as ‘Ms. Lemons.’ Pronouns referring to Ms. Lemons will also reflect that change.” See also, Amicus Brief of the Innocence Project at n 1, filed March 15, 2022 (“Milton Lemons now identifies as female and will accordingly be referred to as ‘Ms. Lemons’ with pronouns reflecting her gender identity.”), and Amicus Brief of the Center for Integrity in Forensic Sciences at n 3, filed March 29, 2022 (“Ms. Lemons currently uses a different name than the one in this case’s caption. We use her chosen name and pronouns throughout our brief.”)
  • Application for Leave to Appeal at n 1, People v Steven Lee Montez, Michigan Supreme Court (Docket No. 164243) filed April 4, 2022 (“Noah, who was named Allea Eickhoff at birth, now goes by the first name Noah and uses the singular they/them pronouns (rather than she/her).” See also, Appellant’s Supplemental Brief at n 1, filed November 4, 2022 (“At birth, Noah was named Allea, but now goes by the name Noah and uses the singular they/them pronouns.”), and Appellee’s Supplemental Brief at n 2, filed November 28, 2022 (“The People note that, at the time of these assaults, NE’s name was different; however, at the time of the trial, they preferred to be addressed using their current name, abbreviated NE (Tr III, 61). Accordingly, the People will refer to them as NE and will use they/them pronouns. Additionally, the People will refer to witnesses using their first names given that many share the same surname.”)

Because an individual’s gender identity should not be assumed from their name, clothing, hairstyle, mannerisms, or another expression, some welcome the day-to-day help in knowing (in advance) court participants’ preferred pronouns. Proper gender pronoun use is the baseline of respect, whether one is part of the LGBTQ+ community or not.

Unacceptable courtroom experiences by LGBTQ+ youth

Another court-experience problem that deserves attention and action: Adults forget that the youth often have first-hand experiences with the courts (including criminal and family court)—and those experiences can also fall short of our “justice for all” ideals.

Lesbian, gay, bisexual, transgender, and queer (LGBTQ+) youth represent almost a quarter of all youth in the juvenile justice system, even though they are estimated to only compose less than 10 percent of the total U.S. youth population. A growing body of research suggests that LGBTQ+ youths’ system involvement often stems from experiences of discrimination and social rejection of their sexual or gender identity.

The Urban Institute’s 2015 report Locked In: Interactions with the Criminal Justice and Child Welfare Systems for LGBTQ Youth, YMSM, and YWSW Who Engage in Survival Sex details unacceptable research findings like:

Youth also described situations where their gender identity and/or sexual orientation was not respected, and in some cases, resulted in mockery by court officials. For transgender individuals, this usually entailed not calling them by their preferred name and/or not using their preferred gender pronoun. Some gay and lesbian youth stated that their sexual orientation was unnecessarily brought up by the prosecutor or judge.

Michigan, too: You would be wrong to assume that this does not happen in Michigan.

During a January 14, 2020 Michigan Court of Appeals in-person oral argument where the (adult) defendant’s counsel repeatedly (and appropriately) used male pronouns when introducing his client (who was also present in the courtroom), Jackson County Prosecutor Jerrold Schrotenboer intentionally (and unnecessarily) chose the female pronoun (at the 20-minute, 18-second mark). Not one member of the three-judge panel corrected the prosecutor. (Docket No. 348672)

The saying “the cruelty is the point” comes to mind—but there should never be tolerance for that in our courts.

Michigan’s estimated transgender numbers from the June 2022 UCLA School of Law Williams Institute report How Many Adults and Youth Identify as Transgender in the United States:

Estimates of those who identify as transgender in Michigan by age group (13 and older)

numberpercent
Age 13–178,9001.41%
Age 18–2410,8001.13%
Age 25–6419,6000.38%
Age 65+2,6000.14%
All adults 18+33,0000.42%

Estimates of those who identify as transgender in Michigan by race/ethnicity (adults ages 18+ only)

numberpercent
White23,4000.40%
Black4,7000.48%
Asian1,1000.46%
Latinx2,2000.66%
All other race/ethnicity groups1,5000.79%

State-based nonbinary estimated numbers are unavailable but the June 2021 UCLA School of Law Williams Institute brief Nonbinary LGBTQ Adults in the United States shares how “Nonbinary people make up approximately 11% of the adult LGBTQ population. While nonbinary identified adults make up a large share of the transgender population (43%), most nonbinary LGBTQ adults are not transgender.”

A Supreme Court of the United States (SCOTUS) flashback

I wonder how many remember this SCOTUS case (and its Michigan connections)?

The 2019 brief’s request:

“[A]s a matter of accuracy and respect, Ms. Stephens is properly referred to as ‘she’ and ‘a woman.’” Michigan’s Aimee Stephens noted in her brief in R.G. & G.R. Harris Funeral Homes, Inc v Equal Emp Opportunity Comm’n et al. Stephens Br. 9 n.6. Her brief earlier explained that she was a woman who was transgender, “which means that she was assigned a male sex at birth and has a female gender identity.”

Opposing counsel’s acknowledgment:

“Out of respect for Stephens,” Petitioner R.G. & G.R. Harris Funeral Homes, Inc.’s counsel, John J. Bursch, permissibly chose to “avoid use of pronouns and sex-specific terms when referring to Stephens.” Harris Br. 8, n.3.

Some amicus brief filers were hostile:

Some amici filers discouraged SCOTUS from (or criticized the Sixth Circuit for) using Stephens’ preference:

  • Public Advocate of the United States, I Belong Amen Ministries, David Arthur, Conservative Legal Defense and Education Fund, Restoring Liberty Action Committee, and Center for Morality Br. 12.

An honored request during oral argument:

Justice Kagan used Aimee Stephens’ female pronouns during the October 8, 2019 oral argument. Tr. 41–42.

Kagan-transcriptDownload

And an honored request in the written 2020 SCOTUS opinion:

Justice Gorsuch likewise included Aimee Stephens’ female pronouns when authoring the Court’s opinion. Bostock v Clayton Cnty, 590 US ___ (2020).

Gorsuch-opinionDownload

Why it mattered: The Bostock opinion is believed to be the first time that a SCOTUS majority used gender-appropriate language when referring to a transgender litigant.

Would the Michigan proposal impermissibly compel a judge’s (or court staff) speech?

The staff comment on the ADM 2022-03 proposal notes that: “The Court is interested in receiving comments addressing the constitutional implications of this proposal.”

It’s worthwhile to first revisit the events that probably triggered the Michigan Supreme Court’s rule proposal

What happened in December 2021: COA Judge Boonstra’s concurrence in People v Gobrick, unpublished per curiam opinion of the Court of Appeals, issued December 21, 2021 (Docket No. 352180) likely got this administrative ball rolling when he ignored a litigant’s pronoun preference and derogatorily opined, in part:

Defendant is a biological man who, as the majority notes and obliges, apparently wishes to be referred to as “they/them” (although even defendant’s counsel frequently defaulted to “he/him” during oral argument, presumably to limit the confusion that otherwise would have infected his colloquy with the Court). The reason given is simply that defendant “identifies as female” (while nonetheless preferring “they/them” to “she/her”). Defendant also claims to have multiple personalities, although that fact is not given as a basis for the requested pronoun preference.

Once we start down the road of accommodating pronoun (or other) preferences in our opinions, the potential absurdities we will face are unbounded. I decline to start down that road, and while respecting the right of dictionary- or style-guide-writers or other judges to disagree, do not believe that we should be spending our time crafting our opinions to conform to the “wokeness” of the day.

I decline to join in the insanity that has apparently now reached the courts.

I sincerely do not understand what triggered Judge Boonstra when Gobrick was decided on December 21, 2021.

You see, Judge Boonstra registered no objection a year earlier when the panel he presided over issued a similar note in People v Nicole Christine Joly, unpublished per curiam opinion of the Court of Appeals, issued January 21, 2020 (Docket No. 348672) where footnote 2 explained: “Defendant identifies as a man and we will use masculine pronouns when referring to him.”

What changed for Judge Boonstra between January 21, 2020 and December 21, 2021? I don’t know.

Public outrage followed: But we do know that his 2021 concurrence led to public outrage.

Michigan LGBTQ+ Community Groups Unite to Admonish Appeals Judge Mark Boonstra Over Transphobic Comments

Judge’s transphobic comments in case prompt rebuke from LGBTQ+ groups

A negative Michigan example: Judge Boonstra’s concurrence also earned top billing as the first-listed “relevant case law” example in the National Association of Women Judges LGBTQ+ Committee’s June 20, 2022 update. Pride & Pronouns: Understanding & addressing gender identity in the courtroom and beyond. (page 10).

Justice Elizabeth Welch countered in her concurrence when the Michigan Supreme Court later denied the application for leave to appeal:

I agree with the Court’s decision to deny leave to appeal. I write separately to address the Court of Appeals’ use of gender-neutral pronouns in the majority opinion after defendant requested to be identified using the pronoun “they.” Our vocabulary and the ways that we refer to each other has changed through the decades. While at one point a judge might have said “thou shalt respect all thy litigants,” we now say “you shall respect all your litigants.” And while the archaism “Hear ye, hear ye” persists for the court crier, we no longer use the term “ye”—rather than you—to refer to more than one person. Instead, whether “you” refers to one person or a group depends upon the context—something readers of the English language understand and are able to decipher.

Judge BOONSTRA’s concurring opinion sets forth his belief that the majority was “altering its lexicon” in a manner contrary to what, in his view, society understands to be an “immutable truth.” People v Gobrick, unpublished per curiam opinion of the Court of Appeals, issued December 1, 2021 (Docket No. 352180) (BOONSTRA, J., concurring), p 1. But lexicographers and the authors of English style guides have long changed practices to reflect the evolution of the English lexicon. This is hardly controversial. As society evolves so does its language. While there might be instances where adoption of a novel change in the English lexicon could cause confusion, this was not such a situation. The Court of Appeals majority provided a detailed explanation in a footnote as to how and why it was using a gender-neutral pronoun in its opinion. The Court of Appeals’ simple use of a footnote and gender-neutral pronoun demonstrates that words matter and that a small change to an opinion, even if unrelated to the merits, can go a long way toward ensuring our courts are viewed as open and fair to all who appear before them.

People v Gobrick, order of the Supreme Court, issued November 10, 2022 (Docket No. 164080).

That’s probably why the ADM file was opened and the proposal published for public comment.

(At least) three reasons why there are no adverse constitutional implications for Michigan’s pronoun proposal

I think—but I cannot be certain—that the staff report expects resistance from some judges (and possibly court staff?) who may (erroneously) feel that the proposed language that “courts are required to use those personal pronouns when referring to or identifying the party or attorney” is a form of compelled speech that somehow violates their personal First Amendment rights.

Any such notion, however, must fail for at least three reasons.

First, Michigan’s constitution: ADM 2022-03 falls within Supreme Court’s exclusive Article VI, section 5 authority under Michigan’s constitution:

The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state. . . .

Second, Michigan’s judicial canons: Michigan judicial officers forfeit their personal First Amendment rights when they put on the robe. Consider:

  • Canon 1 of Michigan’s Code of Judicial Conduct establishes that “the judicial system is for the benefit of the litigant and the public, not the judiciary.”
  • Canon 2(A) explains that “A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” Canon 2(B) clarifies that “[w]ithout regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.”
  • Canon 3(A)(3) of Michigan’s code of judicial conduct requires a judge at all times to be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom they deal in an official capacity. Canon 3(A)(14) similarly requires a judge to treat every person fairly, with courtesy and respect. See also, Michigan Judicial Tenure Commission Letter to District Court Judge Alexis G. Krot (July 5, 2022).
  • Michigan’s Model Code of Conduct for Trial Court Employees Canon 3 similarly requires “I will provide impartial treatment to all persons interacting with the court.” Canon 7 expects “I will not discriminate on the basis of race, color, religion, national origin, gender, or other protected group.” And Canon 9 requires courtesy: “I will carry out my responsibilities to litigants, co‐workers, and all others interacting with the court in a timely, diligent, and courteous manner.”

It should not have to be said that intentional misgendering is disrespectful, discourteous, and contrary to the judicial canons. In this space, in other words, judges do not enjoy a First Amendment right that can be violated. A judge’s obligation to promote courtesy, respect, and civility takes priority. In fact, scores of Michigan judicial officers have been privately admonished by the Judicial Tenure Commission over the decades for directing demeaning or discourteous comments to litigants, attorneys, witnesses, jurors, or others.

A First Amendment challenge to Michigan’s attorney discipline rules already failed: 17 years ago, the Michigan Supreme Court considered the intersection of the similar Michigan Rules of Professional Conduct 6.5(a)’s courtesy and respect expectations with an attorney’s First Amendment rights in Grievance Administrator v Fieger, 476 Mich 231 (2006). In a post-opinion order, the court summarized:

This Court previously determined in this case that the First Amendment of the United States Constitution does not bar the application of the Michigan Rules of Professional Conduct to statements made by respondent-attorney Geoffrey Fieger in the course of a pending lawsuit in the Court of Appeals. Specifically, Mr. Fieger stated that he “declared war upon” the judges hearing his lawsuit, that such judges could “kiss his ass,” that his client should “shove [his finger] up their asses,” that they were “three jackass Court of Appeals judges,” that “the only thing that’s in their ‘endo’ should be a large plunger about the size of my fist,” and that the judges had “changed their name from Adolf Hitler and Goebbels, and — what was Hitler’s [mistress] — Eva Braun.” (emphasis added)

In other words, notwithstanding the First Amendment, the Michigan Supreme Court long-ago decided that counsel remains accountable for violating MRPC 6.5(a)’s professional conduct expectations:

(a) A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously or disrespectfully because of the person’s race, gender, or other protected personal characteristic. To the extent possible, a lawyer shall require subordinate lawyers and nonlawyer assistants to provide such courteous and respectful treatment.

In his 2006 majority opinion in Fieger, Chief Justice Taylor explained why this priority (where an attorney’s First Amendment claims take a backseat) is necessary to ensure public confidence in the judiciary’s work:

In establishing rules designed to deter and sanction uncivil and discourteous conduct on the part of lawyers, we believe that this Court is doing far more than protecting the sensitivities of judges; rather, we believe that we are upholding the integrity of that which is being carried out by the judicial branch of government.

The performance of these responsibilities requires a process in which the public can have the highest sense of confidence, one in which the fairness and integrity of the process is not routinely called into question, one in which the ability of judges to mete out evenhanded decisions is not undermined by the fear of vulgar characterizations of their actions, one in which the public is not misled by name-calling and vulgarities from lawyers who are held to have special knowledge of the courts, one in which discourse is grounded in the traditional tools of the law—language, precedents, logic, and rational analysis and debate. To disregard such interests in the pursuit of a conception of the First Amendment that has never been a part of our actual Constitution would in a real and practical sense adversely affect our rule of law, a no less indispensable foundation of our constitutional system than the First Amendment. (emphasis added)

The current ADM 2022-03 proposal seems to be in perfect harmony with the Michigan Code of Judicial Conduct’s existing expectations, how the Michigan Judicial Tenure Commission has enforced the underlying principles, and how the Michigan Supreme Court has already considered similar expectations of attorneys.

The last reason that any compelled-speech objection must fail is because ADM 2022-03 does not “compel” any speech by a judge or court employee. The proposed rule alternatively allows:

“Nothing in this subrule prohibits the court from using the individual’s name or other respectful means of addressing the individual if doing so will help ensure a clear record.”

What this means is that—even if a judge/court employee doesn’t want to use the pronoun listed on a court filing—the proposal allows the court to alternatively use “the individual’s name or other respectful means of addressing the individual.” What the court cannot do, however, is intentionally misgender a litigant or attorney.

Intentional gender-neutral practice observation

In her 2022 Student Note, Celia Meredith cautions that a blanket or default practice of using a neutral they/them or avoiding pronouns altogether when someone knows that a different pronoun is preferred can be negatively viewed as another form of “erasure.”

How so? Intentionally ignoring someone’s preferred pronouns undermines their sense of belonging because it denies them the chance to be correctly gendered (page 467).

Perhaps this is a fine time to remind all State Bar of Michigan members that part of their oath is to “abstain from all offensive personality.” Can we agree that erasure and denying people from being correctly gendered is offensive?

In a world where you can be anything, be kind.

Other notes on courts and courtesy

In their 2021 Virginia Law Review essay, Chan Tov McNamarah identified other pronoun considerations relevant to this conversation (pages 329-330):

  • When opinions are courteous, they avoid distracting from the underlying legal reasoning and undercutting the judiciary’s most fundamental function: saying what the law is.
  • Judicial courtesy invites advocate courtesy. Judges, through both their in-court conduct and opinion writing, set the tone from the top. Discourteous writing can contribute to, if not fuel, attorney incivility and the attendant problems it causes.
  • Litigants are not likely to partake in processes in which they believe they will be disrespected. When opinions are discourteous, they increase the likelihood that persons will seek justice extrajudicially, rather than by invoking the judicial process. As such, judicial courtesy contributes to social order.
  • Courtesy avoids sanctioning societal oppression, thereby preserving public trust in the judiciary. Given the authority accorded to courts, when their members use discourteous language, particularly toward minority group members, they provide cover for others to be discourteous as well.
  • Courteous language avoids the appearance of judicial approval of discrimination.
  • Courteous opinions shore up our faith in the judiciary.
  • Judicial courtesy maintains the appearance of impartial and principled judgment, and in doing so preserves the courts’ legitimacy.
  • Discourteous writing raises questions of judicial bias and personal hostility, whether or not they exist. Judicial courtesy safeguards court legitimacy by avoiding the cast of suspicion on holdings in individual cases, and on the legal system as a whole.

Bottom (constitutional) line

The pending rule proposal simply promotes respect and discourages disrespect of litigants and counsel.

If a judicial officer can’t judge within that framework, maybe it’s time for them to hang up the robe.

Wait! What about a judge or court staff member’s bona fide personal religious beliefs?

An honest question but the concern has no traction for at least two reasons.

First, the expectation of treating others with courtesy and respect does not violate any known bona fide religion.

Second, Michigan’s “one court of justice” foundational rule of law and separation of church and state principles simply forbid an individual judge or court staff member’s personal religious beliefs from influencing how the court treats people.

A judicial position is not a religious position. Litigants and the public are entitled to neutral jurists. Judge John G. Roberts explained this during his September 13, 2005 confirmation hearing for Chief Justice of the United States:

I do know this, that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don’t look to the Bible or any other religious source.

If, however, a judge cannot overcome a bias because of their personal religious beliefs, then the judge should self-recuse from the case and enter an MC 264 Order of Disqualification.

Court-based, pronoun-acknowledgment examples abound

“Defendant identifies as a man and we will use masculine pronouns when referring to him.” People v Nicole Christine Joly, unpublished per curiam opinion of the Court of Appeals, issued January 21, 2020 (Docket No. 348672), n 1. Significantly, Judge Boonstra sat on this panel but did not object to the opinion’s deference to the defendant’s preferred pronouns.

“Defendant identifies as a female. We will adopt her preferred use of a feminine pronoun in this opinion.” People v Lemons, unpublished per curiam opinion of the Court of the Appeals, issued November 18, 2021 (Docket No. 348277), n 1.

“During this litigation, VS came out as transgender. In an effort to avoid confusion and respect VS’s wishes, we will only refer to VS using his preferred initials and pronouns.” Schoenheide v Shaw, unpublished per curiam opinion of the Court of Appeals, issued October 20, 2022 (Docket No. 360568), n 1.

“Plaintiff references Plaintiff’s ‘gender identity’ and comments by Defendants regarding feminine characteristics. Because Plaintiff uses he/him/his pronouns throughout the complaint, the Court does the same.” Bradley Johnson v Unknown Austin-Olmos, opinion of the United States District Court for the Western District of Michigan, issued December 7, 2022 (Case No. 1:22-cv-710), n 2.

“In the certified record, the victim is described as ‘a male who was female presenting’ and who went by the name ‘China’ at the time of these events. Trial Court Opinion, 12/10/21, at 3. Based upon the averments present in the certified record, we will refer to the victim utilizing ‘she/her’ pronouns.” Pennsylvania v Kyle Klein, memorandum opinion of the Superior Court of Pennsylvania, issued December 28, 2022 (Case Nos. 2072 EDA 2021, 2073 EDA 2021) n 1.

“The opening brief referred to Goodwin as ‘they/them’ and ‘Mx. Goodwin.’ The trial court used these pronouns, and we do the same in this opinion.” Taylor Ellessee Goodwin v Virginia, unpublished memorandum opinion of the Court of Appeals of Virginia, issued November 9, 2022 (Record No. 0312-22-3) n 1.

“Kelly uses feminine pronouns (she/her), and we use those pronouns for the time that she has publicly identified as a transgender woman.” Kelly Camila Gonzalez Aguilar, f/k/a Oscar Alexis Gonzales Aguilar v Garland, 29 F4th 1208 (CA 10, 2022), n 1.

“The court adopts Collymore’s use of the pronouns ‘she’ or ‘her’ in the Statement of Claim.” Steven D. Collymore v Massachusetts, memorandum and order of the United States District Court for Massachusetts, issued October 24, 2022 (Case No. 22-cv-11468), n 3.

“In the amended complaint, Plaintiff identifies herself as a transgender female, and refers to herself using feminine pronouns. The Court will therefore refer to Plaintiff using feminine pronouns.” Dustin Lee Combs v Downing, opinion, memorandum and order of the United States District Court for the Eastern District of Missouri, issued December 19, 2022 (Case No. 4:22-CV-786-PLC) n 1.

“The Court uses D.H.’s preferred pronouns (she/her/hers) throughout. The Williamson County Defendants also use Plaintiff’s preferred pronouns, as they have committed to doing with D.H. in school. (See Doc. No. 28, ¶ 9 (‘all adults in the Elementary School referred to D.H. by her preferred pronouns (she/her/hers)’). The Tennessee Defendants did not use any pronouns.” D.H. v Williamson County Bd of Educ, memorandum opinion of the United States District Court for the Middle District of Tennessee, issued November 2, 2022 (Case No. 3:22-cv-00570), n 1.

“Adelaide refers to herself with the pronouns ‘she/her’ and we will likewise use those terms in conformity with her brief.” In re: Application for Correction of Birth Record of Hailey Emmeline Adelaide, Ohio Court of Appeals, issued June 17, 2022, (Case No. 2022-CA-1) n 1.

“As noted in H.B.’s appellate brief, the minor child prefers the pronouns ‘they/their’ and recently changed names. But because the child was identified as ‘she/her’ and by the prior name earlier in the case, Mother employs the ‘she/her’ pronouns and the prior name (K.B.) throughout her brief to maintain consistency in writing. We will do the same. No disrespect is meant to the child by either practice.” In re K.B. v H.B., unpublished opinion of the California Court of Appeals, Fourth District, Division One, issued January 13, 2023 (No. D080888). n 2.

“Plaintiff states that he is a transgender individual, but he refers to himself by the name Joshua and does not indicate in his filings that he uses female pronouns. Thus, this order uses male pronouns when referring to Plaintiff. If Plaintiff uses female pronouns, he may inform the Court in writing and the Court will refer to Plaintiff by his preferred pronouns.” Preston v Whittington, order of the United States District Court for the Middle District of Georgia, issued June 7, 2022, (Case No. 5:22-cv-00175), n 1.

Helpful resources for courts that want to learn how to do more

Pronouns in Court Toolkit: prepared by the Canadian Bar Association, British Columbia Branch. Includes definitions and FAQs, counsel introduction scripts, an op-ed in defense of the court’s pronoun practice directives, and three examples of court directions.

Public notice: Identification of Pronouns and Titles by Court of Appeal Participants, prepared by the Court of Appeal of Nova Scotia

Bench Card: Pronouns and the Courts, prepared by U.S. Magistrate Judge Mustafa T. Kasubhai (D. Ore.)

Bench Card: Access to Juvenile Justice Irrespective of Sexual Orientation, Gender Identity, and Gender Expression (SOGIE), prepared by the National Council of Juvenile and Family Court Judges, State Justice Institute, Resource Center Partnership, and National Juvenile Defender Center

Bench Card: What Do I Need to Know About Lesbian, Gay, Bisexual, Transgender, Questioning (LGBTQ) Youth in Juvenile Court, prepared by the Judicial Council of California

Bench Card: Supporting Transgender Children and Youth Involved in the Court System, prepared by the Capacity Building Center for States

Notice of Pronouns: Court form prepared by Utah State Courts

Equal Treatment Bench Book, Chapter 12 Trans People: prepared by the England and Wales Judicial College (July 2022 revision)

Trevor Project Research Brief: Survey of Nonbinary Youth (2021)

Massachusetts Confidential Juror Questionnaire (which inquires about sex/gender identity). In Commonwealth v. Carter, No. SJC-11517, 1 (Mass. Aug. 16, 2021) the Supreme Judicial Court held “that sexual orientation is a protected class for purposes of a Batson–Soares challenge.”

Written training materials: Transgender Competency for Pennsylvania Judges and Court Managers, prepared by Ethan Rice, Fair Courts Project Attorney, Lambda Legal (2018)