January 2023 LEMR
This article is featured in Volume 4, Number 1 of the Legal Ethics and Malpractice Reporter.
The discussion as to the use of personal pronouns to reflect gender identities is one that is ongoing in the United States. It has also become an issue for law firms and courts.
As we discussed in an earlier column, the question of whether lawyers and litigants may choose the pronouns by which they will be addressed in court documents and proceedings has already been addressed, to some extent, in New York. Now the Michigan Supreme Court has entered the discussion.
On January 13, 2023, the Michigan Supreme Court issued a proposed amendment to the Michigan Court Rules for public comment. The substance of the amendment reads:
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.
The Staff comment to the proposed Rule is:
The proposed amendment of MCR 1.109(D)(1)(b) would allow attorneys to provide personal pronouns in document captions and require courts to use those personal pronouns when addressing the party or attorney, either verbally or in writing, unless doing so would result in an unclear record. The Court is interested in receiving comments addressing the constitutional implications of this proposal.
There are a number of interesting points in this brief proposed Rule.
- First, it includes both lawyers and their clients.
- Second, the inclusion of preferred pronouns is voluntary and rests with the individuals.
- Third, not only does the proposed rule permit lawyers and litigants to specify by what pronoun they should be referred to in written court documents, but, also, verbally. Presumably, this would mean that once an individual indicated preferred pronouns, all persons in the courtroom would use these declared preferred pronouns.
- Finally, once a lawyer or litigant indicated preferred pronouns in conformance with the rule, the court would be required to address that individual in the preferred way.
The proposed rule provides an exception to a court adopting an individual’s preferred pronouns when to do so might affect the “clarity” of the record. What the rule means by this notion of a clear record is itself unclear. If the rule is adopted as proposed, this exception may well need to be better defined.
The reaction to Michigan’s proposed new court rule remains to be seen (the comment period runs through May 1, 2023). The use of preferred pronouns has been widely adopted in some contexts, such as universities, but resisted in others. Michigan courts have already shown some resistance. The proposed rule follows opinions issued in the case of People v. Gobrick. On December 21, 2021, the Michigan Court of Appeals issued an opinion in which it referred to a defendant using nonbinary pronouns and included a footnote stating:
Although the parties referred to defendant as “Mr. Gobrick” during the trial court proceedings, defendant’s appellate brief indicates that defendant identifies as female and prefers to be referred to using the nonbinary pronouns they and them. The prosecution respectfully obliged defendant’s request by using the they/them pronouns in its appellee brief and at oral argument. Although this Court does not yet have an official policy in regard to the use of preferred pronouns, the Merriam-Webster Dictionary accepts the use of “they” to refer to a single person whose gender identity is nonbinary. Merriam-Webster Dictionary, they (accessed November 23, 2021). This usage is also now accepted by the APA style guide and other style manuals. . . . Like the prosecution, we choose to honor defendant’s request as well. Thus, apart from references to the record that use the pronouns he/him, we use the they/them pronouns where applicable. All individuals deserve to be treated fairly, with courtesy and respect, without regard to their race, gender, or any other protected personal characteristic. Our use of nonbinary pronouns respects defendant’s request and has no effect on the outcome of the proceedings.
Judge Mark Boonstra, who concurred in the majority’s legal analysis and in its decision to affirm defendant’s conviction and sentence, wrote separately to state:
[T]his Court should not be altering its lexicon whenever an individual prefers to be identified in a manner contrary to what society, throughout all of human history, has understood to be immutable truth…. While I respect the right of every person to self-identify however he or she may wish, it frankly should not be of interest or concern to the Court unless it somehow impacts the resolution of the case before us.
People v. Gobrick, No. 352180, 2021 WL 6062732, at *9 (Mich. Ct. App. Dec. 21, 2021). On November 10, 2022, following a one-sentence opinion denying Gobrick’s application for leave to appeal the judgment of the Court of Appeals, Michigan Supreme Court Justice Elizabeth Welch wrote her own concurrence in response to Boonstra:
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, 981 N.W.2d 59, 60 (Mich. 2022). Only time will tell whether this proposal by the Supreme Court of Michigan will become the next battlefield in the culture wars.
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