Trendy New ‘Preferred Pronoun’ Rules For Courts Raise Serious Legal Questions, Experts Say

Religious legal groups argue that new efforts by courts across the country to adopt guidance on “inclusive language” and pronouns, including one in the Michigan Supreme Court that would require judges to use the preferred pronouns of lawyers and parties, pose First Amendment concerns.

• Catholic Lawyers Society of Metropolitan Detroit board member Marcia McBrien told the Daily Caller News Foundation that the Michigan Supreme Court proposal would “force Catholic judges to either affirm an ideology that is directly contrary to Catholic teaching or risk judicial discipline proceedings.”
• Courts adopting their own pronoun policies “instantly decides a very important debate” going on in “many different spheres,” Tyson Langhofer, director of the Center for Academic Freedom with Alliance Defending Freedom (ADF), told the DCNF.

Courts across the country have begun adopting their own guidelines on “inclusive language,” with the Michigan Supreme Court floating a proposal that would require judges to utilize the prefered pronouns of lawyers and defendants, but legal groups argue that such proposals present First Amendment concerns.

Top legal organizations like the American Bar Association and National Center for State Courts are now offering guidance that encourages pronoun usage in the courtroom, while state courts in Michigan, New York and Washington are pushing similar guidelines. During a public hearing on Wednesday, the Catholic Lawyers Society of Metropolitan Detroit (CLSMD) opposed a proposed Michigan Supreme Court rule that would require judges to use the prefered pronouns of lawyers and parties, arguing it compels speech in violation of the First Amendment.

CLSMD board member Marcia McBrien told the Daily Caller News Foundation the proposal would “force Catholic judges to either affirm an ideology that is directly contrary to Catholic teaching or risk judicial discipline proceedings.”

“We oppose the proposed rule as an unconstitutional attempt to compel speech in violation of the Free Speech Clause of the First Amendment, while also infringing upon judges’ religious liberty rights under the Free Exercise Clause of the First Amendment and the right to worship guaranteed by the Michigan Constitution,” McBrien told the DCNF.

Some judges are also opposed: 12 Michigan Court of Appeals judges and 23 trial court judges signed letters against the proposal, according to Bloomberg Law.

Tyson Langhofer, director of the Center for Academic Freedom with Alliance Defending Freedom (ADF), told the DCNF it’s a First Amendment violation “any time the government compels anyone to express a message that goes against their deeply held beliefs.”

“The issue of preference names and pronouns is not simply a matter of civility,” he said. “It also communicates something really important about who we are as humans, what it means to be male and female.”

Federal circuit courts are split when it comes to schools mandating preferred pronoun usage; the Seventh Circuit ruled in April against a teacher who was forced to resign after refusing to use a student’s preferred pronouns, while the Sixth Circuit ruled last May in favor of a professor punished by his university after he declined to use a student’s preferred pronouns.

In February, the American Bar Association adopted a bench card, a tool providing information and guidance for judges, with instructions on using “LGBTQ+ inclusive language and pronouns,” which is based on a New York State Unified Court System guide that instructs judges to avoid gender-specific terms like “ladies and gentleman of the jury,” alternatively using words like “folks” or “jurors.”

They’re not alone: the National Center for State Courts offers a “Gender Inclusivity in the Courts” guide that suggests judges make their own pronouns known, even including them on courthouse signage.

“When judges and lawyers share/volunteer their own pronouns, it reduces the perception that pronouns are only relevant for gender-diverse pronouns,” it says. The center also hosted a webinar in March on “Gender-Inclusive Language For Courts” featuring Washington Supreme Court Chief Justice Steven C. Gonzalez, Illinois Courts Administrative Office Senior Program Manager August Hieber and Alaska Court of Appeals Staff Attorney Sam Turner.

The Washington State Supreme Court recently updated its rules of conduct to remove “biased, gendered, and noninclusive language in those rules,” González said during an interview with the Brennan Center For Justice.

Additionally, Utah State Courts offer an optional “Notice of Pronouns form” parties can file to inform the court on how they should be addressed. California State Courts offer civil jury instructions that say courts and attorneys should “take affirmative steps to ensure they are using the correct personal pronouns.” The New Jersey Judiciary Policy on “Accessible & Inclusive Communications” says to exclude “gender-based terms.”

Courts adopting their own pronoun policies “instantly decides a very important debate” going on in “many different spheres,” Langhofer told the DCNF. ADF is handling multiple lawsuits brought by teachers who lost jobs for declining to use preferred pronouns, including ones in the Virginia Supreme Court and the U.S. District Court for the Northern District of Ohio.

In 2020, Fifth Circuit Judge Stuart Kyle Duncan, a Trump appointee, expressed a similar concern when he denied a motion to refer to a prisoner by his prefered pronouns. Duncan said that doing so may “unintentionally convey [the court’s] tacit approval of the litigant’s underlying legal position.”

Justice Ketanji Brown Jackson recently used preferred pronouns in a Supreme Court opinion on the deportation case of a biological man who identifies as a woman.

Langhofer noted that pronoun usage can create confusion in the courtroom where preferred names do not match legal names.

“I’ve been litigating in this space for a long time, and I see people on every side getting confused,” he said, noting that being forced to use pronouns that do not correspond to sex could also make it difficult to argue certain positions, like arguing in favor of bills that protect women’s sports.

“The courts are able to conduct themselves in a way that welcomes everybody … without forcing individuals to speak messages about really important metters, like sex and gender, that are different than what they believe,” Langhofer said.

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