In an order yesterday, the Michigan supreme court adopted a rule that
(1) invites parties and attorneys to “include Ms., Mr., or Mx. as a preferred form of address and one of the following personal pronouns in the name section of the caption: he/him/his, she/her/hers, or they/them/theirs,” and
(2) requires Michigan judges to “use the individual’s name, the designated salutation or personal pronouns, or other respectful means that is not inconsistent with the individual’s designated salutation or personal pronouns when addressing, referring to, or identifying the party or attorney, either orally or in writing.”
Two justices dissented from the order.
Both the rule and the explanations that two concurring justices offer for it strike me as incoherent:
1. On what conceivable basis is the majority privileging “Ms., Mr., or Mx.” over other honorifics that a party or attorney might prefer? Why is it favoring “he/him/his, she/her/hers, or they/them/theirs” over other preferred pronouns? Why shouldn’t a nonbinary person be invited to specify whatever honorifics or pronouns ze/zie/ne/ve/ey/xe (and so on) prefers?
2. In an opinion defending the rule for preventing “the appearance of misgendering individuals,” Justice Elizabeth M. Welch states that courts “must conduct business in a way that is cognizant of changes in language and social norms.” But a mere two paragraphs later, she acknowledges that “the notion of honoring a person’s specified pronouns has become a source of much debate.” The second proposition contradicts the first: the debate is ongoing (as “has become” conveys), and the court, rather than ratifying “changes” that have occurred, is taking sides in that debate.
As Justice Brian K. Zahra observes in his dissent, “this is a fluid political debate into which our judicial branch of state government should not wade, let alone dive headfirst and claim to have resolved.”
3. Welch mixes the question whether “they” is broadly accepted as a generic third-person singular pronoun with the question whether “they” is broadly accepted as a way to refer to a specific person. I doubt very much that the latter is the case. Until very recently, everyone understood that correct third-person singular pronouns comport with the known or perceived sex of the person referred to.
4. The dissenters agree that judges should treat all litigants with respect. The rule, they point out, is not necessary to ensure that, as judges already had the discretion to use the litigant’s requested pronouns or to “refer to the litigant without using any pronouns.” But, as Zahra points out, the “rule change is much worse than a solution in search of a problem”:
In some cases, the use of preferred pronouns might even be hurtful to another party. An example provided by comment mentioned a rape case involving a biological male defendant and a biological female victim. Under the rule, if the defendant asks the court to refer to the defendant using she/her pronouns, the court is required to do so, which could cause further trauma or embarrassment to the victim.
In other cases (e.g., a boy who identifies as female suing to play on the girls’ soccer team), the court’s use of a party’s preferred pronouns “may unintentionally convey its tacit approval of the litigant’s underlying legal position.” (Quoting a Fifth Circuit opinion.)
Zahra observes that a judge should not use pronouns “inconsistent with those desired by the litigant simply to demean that litigant.” But, he asks, what if the purpose is not to demean but instead to abide by one’s own “religious conviction”? (I would add that a judge who uses correct, rather than preferred, pronouns, might also do so because of non-religious convictions about biology and grammar.)
Zahra also points out that in the case that elevated this controversy to the court’s attention, counsel for a litigant who preferred the pronouns “they” and “them” “frequently defaulted to ‘he/him’ during oral argument.” If an attorney can’t even keep his own client’s pronouns straight, how reasonable is it to demand that a judge in the flurry of a trial somehow do so?