The Michigan Supreme Court approved a new rule Wednesday requiring justices to use preferred pronouns or “other respectful means” to address attorneys.
The first-of-its-kind state court rule, which faced pushback prior to its approval, is now scheduled to take effect Jan. 1. In his dissent, Michigan Supreme Court Justice David Viviano warned the decision to “dabble in politics” would cause the court to “forfeit legitimacy with large portions of the public,” noting that addressing such topics is “sadly consistent with this Court’s recent practice.”
“By once again taking stances in a political debate, the Court will not earn the public’s trust, nor should it,” he wrote. “Rather than instilling confidence, the result, I fear, will be to encourage the view that this Court is a political institution. (RELATED: Trendy New ‘Preferred Pronoun’ Rules For Courts Raise Serious Legal Questions, Experts Say)
Under the new rule, attorneys may request to be addressed as Ms., Mr., or Mx and can select he/him/his, she/her/hers or they/them/theirs pronouns.
“Courts must 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,” the rule states.
“While Michigan is the first state court to amend its court rules to expressly include such comprehensive protection for personal pronouns—history is made by being the first,” Michigan Supreme Court Justice Kyra Bolden wrote in a concurring opinion.
🚨BREAKING🚨: Michigan’s Supreme Court just ruled that judges must use an attorney’s preferred pronouns.
The rule will go into effect January 1, 2024. pic.twitter.com/MS2D2kYyla
— Brandon P (@Brandopinione) September 28, 2023
“Quite aside from the constitutional issues at stake, the pronouns rule is ripe for abuse, as Justice Zahra points out; it could easily be used to create confusion, especially in the court record (singular ‘they’ or plural ‘they’?), and create delays and distractions,” Marcia McBrien, a past president of the Catholic Lawyers Society of Metropolitan Detroit (CLSMD) who spoke against the proposed rule at a public hearing in June, told the DCNF. “I also fear that the new rule will be used to punish judges who, whether inadvertently or for reasons of conscience, address an attorney or party by the ‘wrong’ pronoun.”
In June, McBrien told the DCNF the rule would “force Catholic judges to either affirm an ideology that is directly contrary to Catholic teaching or risk judicial discipline proceedings.”
Justice Brian Zahra also penned a dissent, saying he is “deeply troubled” by the proposal’s adoption.
“All told, 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,” Zahra wrote. “Such hubris has no place within the operation of a judicial branch of state government.”
Zahra noted concerns about religious convictions and said he has “little doubt that this question will one day be resolved by the Supreme Court of the United States.” Michigan Justice Elizabeth Welch addressed religious concerns in her concurring opinion.
“Whether for religious or other reasons, many comments reflected a personal belief that gender could not change. But the rule provides that ‘other respectful means’ can be used to address a party who makes a specific pronoun request,” Welch wrote. “Certainly, asking our judges to be respectful to litigants using other general neutral means (such as addressing a party as ‘Attorney Smith’ or ‘Plaintiff Smith’) does not force anyone to violate their beliefs.”
The American American Bar Association adopted a bench card in February providing guidance for judges on using “LGBTQ+ inclusive language and pronouns.” The card is based on a New York State Unified Court System inclusive language guide adopted in 2022 that instructs judges to avoid gender-specific terms like “ladies and gentleman of the jury” and instead use words like “folks” or “jurors.”
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