The phrase “New Year, New You” has taken on additional meaning in courtrooms across Michigan as a new rule took effect Monday, Jan. 1, requiring judges to address defendants, litigants, attorneys and others having business before the bench with their preferred pronouns.
“Parties and attorneys may also 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. Courts must use the individual’s name, the designated salutation or personal pronouns, or other respectful means that are 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,” states the Michigan Supreme Court order, signed Sept. 27.
The issue first came into view in 2021 following the refusal of Michigan Court of Appeals Judge Mark Boonstra to acknowledge the defendant in a criminal sex assault case, People v Gobrick, as a transgender female.
Judge’s transphobic comments in case prompt rebuke from LGBTQ+ groups
“Defendant is a biological man who, as the majority notes and obliges, apparently wishes to be referred to as “they/them,” said Boonstra, who was appointed by GOP former Gov. Rick Snyder, in a concurring opinion. “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.”
The backlash the opinion prompted from the legal community began a process that culminated in the creation of a draft order followed by more than eight months of contentious public comment, with supporters such as the LGBTQA Section of the State Bar of Michigan saying that adopting the rule “would align with consensus in the scientific and medical community regarding transgender identity and gender dysphoria, would expand access to our courts and public confidence in the fairness of our justice system, and would ensure that persons who come before a court can do so with an expectation that they will be treated with courtesy and respect.”
Opponents, such as the Catholic Lawyers Society of Metropolitan Detroit, mainly lined up on the argument that the rule would violate the free speech rights of judges by infringing their religious rights.
“Catholic judges are good and faithful servants of the law, but they are always servants of God first. The Court should not adopt a rule that will abridge their freedom of speech and their freedom of worship and require them to choose between public service and faithfulness to Almighty God,” stated the group.
A similar divide was laid out in the Michigan Supreme Court opinion establishing the rule, which passed 5-2.
Justice Elizabeth Welch, a Democratic-nominated justice and one of the five who voted in favor, said the amendment was simply acknowledging that as society evolves, so, too, does vocabulary.
“In order to be fair and impartial, courts, as the face of the third branch of government, must conduct business in a way that does not give the appearance of misgendering individuals, intentionally or otherwise,” she said. “A primary goal of this change is to ensure that the judiciary operates in a manner that is objectively respectful of the individual identity and personal pronouns of the members of the public that we serve, regardless of the subjective viewpoints of individuals working within the court system.”
Her colleague, Justice Brian Zahra, a GOP-nominated justice, dissented on the rule change, arguing that it was an overreaction to Boonstra’s opinion in the 2021 case.
“Let us not overlook the fact that it is decidedly rare for a litigant to request that a court use a preferred pronoun that is inconsistent with the biological gender reflected on the litigant’s birth certificate,” said Zahra. “The first noted instance in our courts was in December 2021, when a Court of Appeals judge wrote a concurring opinion explaining why he would not abide by a criminal defendant’s preference to be referred to by the pronouns ‘they’ and ‘them.’ The concurring opinion was zealous, but not disrespectful. It simply defined this emerging issue to the Michigan judicial system. It is unprecedented for this Court to take such swift action in the face of such a novel and evolving issue. The swiftness with which the Court imposes this rule does not account for the actual problems that it is certain to create.”
However, in a concurring opinion, Justice Kyra Bolden, who was appointed by Democratic Gov. Gretchen Whitmer, noted that the rule gave judges a variety of options to address such issues and was specifically designed to forestall intentional misgendering.
“Courts may still refer to litigants by last name or by a party designation, such as ‘plaintiff’ or ‘defendant,’ Bolden said in a footnote. “Likewise, courts may still refer to attorneys by last name or another title like ‘counselor.’ What this amendment does is require judges who are provided with pronouns identified by a party or attorney to refrain from using nondesignated pronouns when using pronouns to refer to those individuals during legal proceedings.”
Welch also noted that the change was not the landmark decision it was being characterized as, but instead a simple update in line with the times, noting that it was “not that long ago” that many judges refused to allow female attorneys to be referred to as “Ms.” rather than “Miss” or “Mrs.” based on their marital status.
“The salutation was the subject of much debate, which today has largely been forgotten. Later generations of attorneys would likely be confounded by the notion that women in court had to use a salutation that indicated marital status while men faced no such requirement. Society has, thankfully, long moved past that debate,” said Welch.
Additionally, when asked about the proposed change by Bloomberg Law in June, Marla Greenstein, executive director of the Alaska Commission on Judicial Conduct and secretary of the Association of Judicial Disciplinary Counsel, said there are numerous instances in which courts routinely grant this right.
“This is no different from designating the name that you choose to go by in court,” said Greenstein. “Emancipated children, divorce proceedings where people want to use a different last name; it’s not uncommon that the court allow you to choose how you want to be addressed.”
And while Michigan may be the first state to mandate the change through its court rules, it is not alone within the legal profession in seeking the update.
In February 2023, the American Bar Association (ABA) passed resolution 401, which supports “efforts with federal, state, local, territorial, and tribal courts nationwide to implement bench cards or court rules (that) provides information and guidance to judges to use LGBTQ+ inclusive language and pronouns, including how to interact with transgender, non-binary, and gender expansive court users in accordance with the Judicial Rules of Conduct.
Another issue brought up by Zahra was the potential for bad faith actors to use the rule as a means of disruption.
“This court rule is an open invitation to abuse by litigants eager to gain any measure of control over their fight,” he said. “It is all too common for litigants possessing a scorched-earth mentality to delay, distract, and inject confusion into legal proceedings. The goal is usually a mistrial or to harbor error for appellate review. This is no small matter. This situation is rendered all the more untenable by the absence of language providing courts with the authority and discretion to stifle bad-faith litigants.”
That issue was addressed by the Michigan Judges Association (MJA), which represents judges in Michigan’s circuit courts and the Court of Appeals.
In its April 18, 2023, comment about the rule change, the association proposed additional language that would provide judges with options of how they addressed individuals in court. The amended language proposed to allow judges to use either the individual’s name, their designated personal pronouns, or other “respectful means” of addressing them, essentially making it clear that options other than pronouns were available if a judge so desired.
“These changes support the intent of the rule to ensure procedural fairness by creating an environment where all participants feel they are treated with courtesy and respect, while protecting against potential abuses by persons wishing to cause disruption in court proceedings or those who would seek to confuse the record or jurors. Our proposed changes will preserve a judge’s discretion to maintain the dignity of the courtroom while protecting the record,” stated MJA President Appeals Court Judge Michelle Rick.
Rick, a Democratic-nominated judge who ended her term as MJA president on Dec. 1, told the Michigan Advance that she was pleased to have worked collaboratively with the other state judicial associations, including the Michigan Probate Judges Association, District Court Judges Association, and the Association of Black Judges of Michigan, and offered the suggestions she said the high court adopted in its final formulation.
“It is an example of the Supreme Court working to ensure all litigants are respected and simultaneously acknowledging that trial courts must have the ability to maintain a clear record,’ she said, adding that when she served on the trial bench from 2007 until her election to the appeals court in 2020, she tried to avoid pronouns and instead use identifiers with proper names.
“For example, I would say Attorney Brown, rather than Mr./Ms./Mx. I attempted to do the same with litigants, so long as they gave permission for me to use a first name,” said Rick. “There were a handful of times when I perhaps wasn’t certain how a litigant identified. Use of their proper name avoided a conversation on the record and in open court, which might have caused embarrassment. On the other hand, it is a simple question to ask how someone prefers to be addressed. The court rule change gives control to the litigant to self-identify without a protracted conversation in open court. We know that litigants who feel seen, heard, and respected are more likely to accept judicial outcomes, even when they have not prevailed. I’d say this court rule accomplishes a good thing.”
While the Michigan Court of Appeals (COA) as a body did not officially weigh in on the rule change, 12 of its 25 judges, including Boonstra, signed on to a letter that questioned what they viewed as the “ambiguous” nature of the rule, noting that it did not limit parties to traditional pronouns such as he/him/his, she/her/hers or they/them/theirs, but opened up the possibility of using “neopronouns” that could “refer to animals, fantasy characters, ‘or even just common slang.’”
The 12 COA judges also said the proposed amendment did not address what repercussions would follow a violation of the rule, asking, “Will a judge who breaches the rule be subject to discipline before the Judicial Tenure Commission?”
The Advance asked that question of Lynn Helland, the executive director of the Michigan Judicial Tenure Commission (JTC), the body authorized by the Michigan Constitution with holding judges, magistrates, and referees accountable for their conduct under state court rules.
Regarding the question raised by the Catholic Lawyers Society of Metropolitan Detroit whether a judge’s religious rights could be violated by following the rule, Helland said that would be a unique situation.
In order to be fair and impartial, courts, as the face of the third branch of government, must conduct business in a way that does not give the appearance of misgendering individuals, intentionally or otherwise.
– Supreme Court Justice Elizabeth Welch
“I’m not aware of a past case in Michigan in which the JTC was asked to consider a judge deliberately violating a law or court rule and doing so on the basis of religion,” he said, adding that he could not predict how the JTC would resolve the issue if such a complaint was made.
However, Helland said any complaint of a rules violation brought to the commission would obligate them to investigate it as a potential breach of Canon 3(A)(1) of the Michigan Code of Judicial Conduct, which requires judges to be faithful to the law “and maintain professional competence in it.”
However, he said there is a “wrinkle” in that guidance.
“To the extent an aspect of the rule is truly ambiguous, it is likely unenforceable. The Judicial Tenure Commission is not in the business of sanctioning when the rules are not reasonably clear,” said Helland.
While those situations are speculative in nature, the reality is that the new rule is now in effect across Michigan courtrooms, and State Court Administrator Tom Boyd told the Advance that he anticipates it will be faithfully followed.
“(T)rial court judges statewide are well aware of the court rule amendment and many contributed comments as did hundreds of other stakeholders,” he said. “Judges have a responsibility to stay up to date on all court rule changes, legislative measures, and other factors that affect operations in their courtrooms, and I am confident implementation of this rule will reflect their commitment to making sure everyone in our justice system is treated with dignity and respect.”
For Erin Knott, executive director of Equality Michigan, dignity and respect is why this new rule was needed, as oftentimes members of the LGBTQ+ community find that their path to justice is littered with roadblocks that others don’t have to contend with.
“I think that has a huge impact, because we constantly see clients that come to us that have experienced some sort of just horrific act of violence or discrimination, bullying, harassment. And then, as we’re working with them to seek whatever the remedy is, we will oftentimes see these individuals be re-victimized again by the system,” she told the Advance. “And that includes courts or law enforcement, hospitals, you name it, intentionally misgendering an individual and using their dead name, so I think that this is one step in the right direction that’s showing that we value all Michiganders and we see transgender and non-binary people for who they are.”
Knott said she believes it makes a huge difference when the justice system stands as an example of impartiality for everyone.
“I think if you have entities like courts modeling good behavior, eventually that hopefully will help to change hearts and minds and have a trickle-down effect,” she said.