Jasmine Mareza Zarazua “identified as female” when she led police on a dangerous chase in her car, and she continued to do so “at the commencement of the prosecution” against her for numerous traffic violations. But at trial she “identifie[d] as male.” So recounts a California appellate court in a ruling last week that admonishes the prosecutor who “repeatedly misgendered” Zarazua during the trial.

As authority for what the offense of “misgendering” consists of, the court does not invoke any provision of California law. It instead cites a recent article in a law review edited by Berkeley law students.

From the court’s account, it appears that the prosecutor tried to use third-person singular masculine pronouns (he/him/his) in referring to Zarazua but often ended up using feminine pronouns instead. The court stops short of concluding that the prosecutor engaged in misconduct and rules against Zarazua on the ground that any presumed misconduct would have been harmless. But the court establishes a broad new rule that a prosecutor’s duty to treat parties with respect requires the “use of preferred pronouns.”

Let’s think about what this rule means. A man is on trial for rape. He identified as male at the time of the alleged rape, and anyone looking at him would perceive him to be a man. But he says that he now identifies as female. So the prosecutor is supposed to refer to him with feminine pronouns throughout the trial, including in questioning witnesses. The prosecutor’s questioning of the victim might go something like this:

Q. Tell me what happened next.
A. I looked behind me and saw a man approaching.
Q. What did she look like?
A. He looked exactly like him [pointing to the defendant].
Q. What was she wearing?
A. He had on shorts and a red t-shirt.

I’m not going to take this further, into the prosecutor’s questions about “what she then did with her penis.” Suffice it to say that I can’t imagine how respect for the defendant requires confusing the jury and exasperating the victim.

My hypothetical is an extreme case, but in Zarazua’s own trial jurors might well have felt whiplashed by the back and forth between a prosecutor using masculine pronouns and the witnesses who (as defense counsel anticipated) evidently referred to Zarazua as a woman. Imagine further the confusion that could result from a defendant who identifies as plural (they/them/their) or who adopts nonbinary pronouns (e.g., ze/zim) or multiple sets of pronouns.

More fundamentally, in perennial English usage, speakers use third-person singular personal pronouns consistent with the sex they know or perceive the person they are talking about to be. To observe that third-person singular personal pronouns have the grammatical attribute of gender in no way implies that these pronouns should comport with a person’s gender identity rather than the person’s sex. This point will of course escape those who know little about grammar and who routinely commit the genuine offense of confusing the subjective and objective cases of pronouns.

This whole idea of some sort of right to insist on “preferred pronouns” is an incoherent woke invention that reflects the transgender ideological assertion that a man who identifies as female really is female. What possible warrant does a court have for imposing this ideology?

I don’t mean to suggest that there is no room for accommodating a party at trial who has a gender identity that differs from his sex. Take the case of a man who actually looks and sounds more or less like a woman. In such an instance, it will probably be less confusing to the jury and to the opposing lawyers to refer to him as a woman. And if nothing in the dispute turns on the matter, perhaps it’s best to indulge that fiction.

Other instances might be more complicated. Rather than an appellate court’s insistence on the universal use of “preferred pronouns,” the trial judge should have broad leeway to sort out with the lawyers in advance how best to proceed.