Pronoun Selection for Lawyers, Litigants Divides Michigan Courts

A Michigan Supreme Court proposal that would require use of lawyers’ and parties’ preferred pronouns is dividing judges, with sides weighing competing interests in civility and judicial discretion to manage courtrooms.

The proposed rule change, up for a hearing Wednesday, would require courts to use the personal pronouns that parties and attorneys designate, or use a person’s name or “other respectful means” to ensure clarity in court records.

Experts say Michigan is the latest in a wave of states striving to accommodate transgender and gender-nonconforming lawyers and litigants with updates to the justice system’s understanding of courtesy and civility, as nontraditional ways of gender presentation become more mainstream.

Meanwhile, response from the judiciary has been lukewarm with some staff concerned about the potential pitfalls of making a mistake or creating confusion in court records or proceedings. Hanging in the balance is equal treatment and access to justice, with experts and advocates saying changes are necessary to ensure the courthouse is welcoming to all.

“If you’re not making an effort to be polite or respectful in court, people are going to make all sorts of inferences that the judge has some ax to grind,” said Hallie S. Konarske, a lawyer who presented as a man when starting a clerkship with conservative Michigan Supreme Court Justice David Viviano. Over the course of the clerkship, she came out to staff as a trans woman, and started using the name Hallie.

“Whether you’re able to treat people with grace or not impacts the whole idea of fairness,” she said.

Divided Bench

Division on the issue starts at the top of the state.

Conservative Michigan Supreme Court Justices Viviano and Brian K. Zahra didn’t want to move forward with the proposal. A letter signed by 12 court of appeals judges and 23 trial court judges both oppose the alteration. However, the chief judge of the state Court of Appeals filed a comment saying most appellate judges support the change.

The chief of Michigan’s Third District—the court system in Detroit—filed two separate comments, the first saying her district supports the change and then a second walking back that statement, saying several judges were concerned the mandatory nature of the rule could limit the court’s discretion. The Michigan Judges Association filed a comment saying they’d back the proposal if it were altered in a way that would give the courts more clear discretion.

This diversity of opinion is a microcosm of a broader nationwide discussion where states are generally moving to have more inclusive rules, said Andy Wirkus, a consultant for the National Center for State Courts. He tracks developments on this and related topics across the country and noted Utah, Massachusetts, California and New Jersey have already enacted similar rules.

“What the issue really comes down to is a matter of accuracy and dignity and respect, and so all Americans feel they can trust the judicial system,” he said.

Religious Liberty, Court Management

Michigan’s rule change detractors have three general arguments: That the rule infringes upon religious liberty of judges; court proceeding and records could become confusing; and mistakes by judges could open them up to lawsuits.

However, these concerns don’t have support, said Charles Geyh, an Indiana University Law School professor and ethics expert. Judges are already universally under ethical duties of courtesy and civility, which circumscribe their free speech and religious rights in court.

“Put simply: You don’t have to believe that someone is a male when you call them mister, but courtesy dictates that you do so, even if you don’t believe in your heart of hearts that’s true,” he said about the ethical requirement for judges.

Courtesy is key to preserving decorum in court, which is necessary to create a non-violent forum for dispute resolution, Geyh said. Courtesy must go both ways.

“Litigants have to call him ‘your honor’ even if they don’t think he’s honorable,” he said.

As for potential issues of confusion, Wirkus said courts that have adjusted their rules can accommodate nuanced identification issues with a footnote. Additionally, courts that have adopted similar rules haven’t seen a wave of litigation against judges.

Past Parallels

A rule change in Michigan would follow a recent resolution by the American Bar Association encouraging courts to adopt inclusive language changes.

This next frontier in civility has parallels to the decades in which judges adapted—some very slowly—to properly recognizing women in court, including by not using titles that presume a woman’s marital status, said Marla Greenstein, who for three decades has served as Executive Director of the Alaska Commission on Judicial Conduct and secretary of the Association of Judicial Disciplinary Counsel.

Courts are adaptable and must handle referring to litigants in different ways in myriad situations, she said.

“This is no different from designating the name that you choose to go by in court,” she said. “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.”

That choice is something Konarske hopes she can make with court acceptance. She hasn’t yet changed her legal name, so if she represents a client in court and identifies herself for the court reporter’s record, she’ll need to decide how to identify and whether to present her deadname, which she no longer uses publicly.

“It makes you think about who you really are, and what things really matter,” she said. “Honestly, this rule change would take a lot of the stress out of this for me.”