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A proposed rule change in the Michigan Supreme Court regarding the use of preferred pronouns for lawyers and litigants has ignited a contentious divide among judges. The proposal, scheduled for a Wednesday hearing, aims to ensure clarity in court records by requiring the use of personal pronouns designated by parties and attorneys, or alternatively, the use of a person’s name or “other respectful means.”
Legal experts argue that Michigan is following a nationwide trend of striving to accommodate transgender and gender-nonconforming individuals within the justice system. As nontraditional gender presentations become more mainstream, states are increasingly updating their understanding of courtesy and civility. However, the response from the judiciary in Michigan has been mixed, with concerns about potential mistakes or confusion in court records and proceedings. At stake is the equal treatment and access to justice for all individuals, prompting experts and advocates to emphasize the necessity of changes to ensure a welcoming courthouse environment.
The impact of displaying politeness and respect within court proceedings is highlighted by Hallie S. Konarske, a lawyer who transitioned from presenting as a man to identifying as a trans woman during her clerkship with conservative Michigan Supreme Court Justice David Viviano. Konarske emphasizes that the ability to treat people with grace directly influences the concept of fairness in the courtroom.
The division on this issue is evident even among Michigan’s highest courts. Conservative Justices Viviano and Brian K. Zahra expressed their reluctance to move forward with the proposed rule change. Additionally, a letter signed by 12 Court of Appeals judges and 23 trial court judges opposes the alteration. However, the state Court of Appeals chief judge submitted a comment indicating that most appellate judges support the change. The chief of Michigan’s Third District initially expressed support for the change but later issued a second comment, stating concerns among several judges regarding the mandatory nature of the rule and its potential to limit the court’s discretion. The Michigan Judges Association commented that they would support the proposal if it offered greater clarity and discretion to the courts.
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The debate within Michigan reflects a broader nationwide discussion as states increasingly adopt more inclusive rules. Andy Wirkus, a consultant for the National Center for State Courts, emphasizes that the issue revolves around accuracy, dignity, and respect, all of which are crucial for fostering trust in the judicial system.
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Opponents of the rule change in Michigan raise three main arguments. First, they contend that it infringes upon judges’ religious liberty. However, Charles Geyh, an ethics expert and professor at Indiana University Law School, argues that judges are already bound by ethical duties of courtesy and civility, which restrict their freedom of speech and religious rights within the courtroom. Second, concerns about confusion in court proceedings and records are raised, but courts that have adjusted their rules have been able to accommodate nuanced identification issues through footnotes. Furthermore, jurisdictions that have adopted similar rules have not experienced an influx of lawsuits against judges.
The proposed rule change in Michigan aligns with a recent resolution by the American Bar Association, which encourages courts to adopt inclusive language changes. This evolving standard of civility parallels the historical adaptation of judges to properly recognizing women in court, such as avoiding titles that assume a woman’s marital status.
Marla Greenstein, Executive Director of the Alaska Commission on Judicial Conduct and secretary of the Association of Judicial Disciplinary Counsel notes that courts are adaptable and must address the diverse ways litigants prefer to be referred to in various situations. Just as individuals may choose to go by a different name in court, Greenstein argues that allowing individuals to select how they wish to be addressed is a matter of common practice.
For individuals like Hallie S. Konarske, the proposed rule change provides hope for greater acceptance and reduced stress. Konarske, who has yet to legally change her name, faces the challenge of deciding how to identify herself in court proceedings. She believes that the rule change would alleviate much of the pressure associated with such decisions.
As Michigan courts grapple with this divisive issue, the outcome will have far-reaching implications for the state’s legal landscape. The ultimate goal is to strike a balance between respect, inclusivity, and the efficient administration of justice, ensuring that all individuals, regardless of gender identity, are treated fairly within the courtroom.
