May 2022 LEMR Article
This article is featured in Volume 3, Number 5 of the Legal Ethics and Malpractice Reporter.
Over the past several years, many businesses, social organizations, and educational institutions have led initiatives to encourage individuals to declare their preferred gender pronouns. We now often see this reflected in the signature to emails, where many people have added a set of preferred pronouns. In some cases, the preferred pronouns will be gender specific, e.g., “she/her/hers.” In other cases, they will be “gender neutral,” e.g., “they/them.”
Many legal organizations have adopted new policies regarding the pronouns with which an individual wants to be associated. For instance, Jenner & Block, Davis Polk & Wardwell, and other large firms have adopted permissive policies on pronoun use and let employees and partners choose the pronouns they prefer.[1] Some Canadian courts have also endorsed a permissive pronoun policy:
“Providing a forum of justice that is impartial, fair, consistent, and assures equal access for everyone is part of the mission of the Provincial Court of British Columbia,” its notice read. “According people dignity and respect by using their correct titles and pronouns is one aspect of such a forum… Using incorrect gendered language for a party or lawyer in court can cause uncomfortable tension and distract them from the proceedings that all participants should be free to concentrate on.”[2]
But the United States has yet to see a great deal of law regarding lawyers’ and judges’ ethical obligations with respect to an individual’s pronoun choice.
However, in January 2021, the New York courts issued Judicial Ethics Opinion 21-09, which deals with one particular aspect of this issue. The question presented to the Ethics Commission was:
A judge asks if they may “require a singular pronoun be used for a singular person” in order to “keep order in the courtroom, and to have a clear record.” That is, when a party expresses a preference for gender-neutral plural pronouns (they/them), the judge wishes to require them to instead choose a singular pronoun, he/him or she/her. The judge is concerned that the use of “they” could create confusion in the record as to the number of persons to whom a speaker is referring.
It seems clear that the question posed by the judge in this case was not hypothetical, but, rather, arose from a request by a lawyer, court employee, or party in the judge’s courtroom. It is also clear from later parts of the opinion that the judge in this case wanted to impose a rule that required all the individuals in the courtroom to be referred to by singular pronouns. This, of course, is a policy quite different from that adopted by the law firms mentioned above and by the Canadian courts. It is also probably fair to assume that the situation described and the policy proposed by the judge was not unique and similar questions to those discussed in this opinion will arise in courts around the United States. Thus, this New York opinion is likely to be read by judges and lawyers throughout the nation.
The opinion begins its substantive analysis by restating several of the basic provisions of Code of Judicial Conduct, as adopted in New York. It highlights the requirement that judges avoid any “appearance of impropriety,” stating that this requirement necessitates:
The “courthouse and courtroom must convey to the public that everyone who appears before the court will be treated fairly and impartially.”
The opinion goes on to conclude that the requirement of judicial impartiality extends to pronoun preferences of those in a courtroom:
We can see no reason for a judge to pre-emptively adopt a policy barring all court participants, in all circumstances, from being referred to by singular “they,” which is one of three personal pronouns in the English language. That is, “they” has been recognized as a grammatically correct use for an individual…
And:
Adopting and announcing the sort of rigid policy proposed here could result in transgender, nonbinary or gender fluid individuals feeling pressured to choose between the ill-fitting gender pronouns of “he” or “she.” This could not only make them feel unwelcome but also distract from the adjudicative process. Thus, as an ethical matter, we believe the described policy, if adopted, could undermine public confidence in the judiciary’s impartiality.
Although the opinion recognizes that judges have authority “to ensure the clarity of the record as needed” by “adopting reasonable procedures in their discretion,” it unambiguously concludes that a judge may not force an individual to use or be referred to by a pronoun against that individual’s expressed preference.
The issue of individual choice of pronouns is a somewhat “hot topic” politically at the present time—one many judges and lawyers may want to avoid. But those with responsibilities in regard to judicial and lawyer conduct will inevitably encounter this issue in the next few years. Whether other state authorities will follow New York’s opinion in these matters remains to be seen.
References:
[1] Bloomberg Law, “Jenner & Block Latest Firm to Roll Out Preferred Pronoun Policy.”
[2] S. Peters, “Respecting pronouns is a professional responsibility.”
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