The debate about pronouns and gender identity has come to the judicial system. Courts are now addressing whether they can require judges and attorneys to use particular pronouns to refer to a person, even if those pronouns are inconsistent with the person’s sex. Regulations that encourage or even require attorneys and judicial staff to use particular pronouns are becoming more common—with some courts in favor[1] and some opposed.[2]

The Michigan Supreme Court recently stepped into this debate.[3] Although the Code of Judicial Conduct already required Michigan judicial staff to treat “every person fairly, with courtesy and respect,”[4] the Michigan Supreme Court enacted a new rule requiring Michigan court personnel to use a person’s self-selected pronouns or “other respectful means” to refer to individuals before the court:

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.[5]

While this rule encourages courts and court staff to use an individual’s self-selected pronouns throughout the judicial process, use of those pronouns is not required.[6] If an attorney declines to use a pronoun different from a person’s sex, for example, that attorney must instead use another “respectful means” to refer to the person that is “not inconsistent with the individual’s . . . personal pronouns.”[7] The rule states that the person’s name is another acceptable means.[8]

The Michigan Supreme Court approved the new rule in a vote of 5-2, drawing two concurrences and two dissents.[9] The rule goes into effect January 1, 2024.[10]

Justice Elizabeth Welch wrote a concurrence “fully support[ing] the Court’s amendment,” claiming that the new rule will bolster fairness, impartiality, and confidence in the judiciary.[11] Justice Welch likened the new rule to the previous policy change that enabled female attorneys to use the salutation “Ms.” instead of “Miss” or “Mrs.”[12]

Justice Welch discussed the objections to the new rule, such as confusion when court participants use the pronoun “they,” confusion in court records if a party identifies as one gender but prefers a different pronoun, and conscientious objections to using pronouns that do not match the person’s sex.[13] But she ultimately found the rule to be aimed at promoting “civility and respect.”[14] She argued that the enactment of this rule was necessary to promote the judicial system’s credibility.[15]

Justice Kyra Bolden also wrote a concurring opinion to highlight that the rule does not present new opinions but instead reflects the expectations already written in other judicial canons.[16] She primarily responded to objections that the rule violates First Amendment protections. Her argument rested on Garcetti v. Ceballos, which allows limitations on the free-speech rights of government employees.[17] Justice Bolden argued that when judges are on the bench, they are not working in an individual capacity, so they should be willing to “accept limits on their freedoms as part of their privilege to serve on the bench.”[18]

Justice Bolden also reflected on the other relevant cases addressing pronoun mandates across the country. She noted that the 5th Circuit’s Varner decision rejecting compulsory pronoun use is not binding authority.[19] And she celebrated Michigan’s trailblazing status as the first state to “amend its court rules to expressly include such comprehensive protection for personal pronouns—history is made by being the first.”[20]

Conversely, Justices Brian Zahra and David Vivano wrote dissents highlighting the potential problems the new rule might create.

Justice Zahra highlighted the confusion that might arise from requiring judicial staff to use pronouns inconsistent with a person’s sex. First, he emphasized that the Michigan Supreme Court should not wade into such controversial waters in the first place.[21] He characterized the rule as unnecessary because the Michigan court system is already governed by the Code of Judicial Conduct, which requires that judges treat all people with “courtesy and respect.”[22] Second, he worried that litigants will use this rule to “delay, distract, and inject confusion into legal proceedings.”[23] Zahra argued that the rule provides opportunities for bad actors to take advantage of the court system.

Third, he noted that the rule could present novel questions about First Amendment protections while also causing the court to appear biased against or even hurt those involved in judicial proceedings.[24] For example, he presented a hypothetical situation involving a rape case with a male defendant and a female victim. If the court must refer to the male defendant using she/her pronouns, it could hurt the victim and show tacit support for the defendant.[25] Justice Zahra concluded that the rule would only serve to cause confusion and hinder the administration of justice in Michigan’s court system. 

Justice David Vivano wrote the other dissent, arguing that the rule would undermine the court’s legitimacy (in direct contrast to Justice Welch’s argument that the rule would increase public confidence in the court).[26] He worried that the court wading into controversial, political waters would undermine the public’s confidence in the court as an impartial arbiter of the law.[27] The rule, he argued, creates a precedent of courts stepping into politics through rulemaking.[28] He stressed that judges have the duty to interpret and enforce the laws to be consistent with the Constitution.[29] And by choosing a side in an ongoing cultural debate, it could appear the court is no longer neutral.[30]

Michigan’s new pronoun rule will have implications inside and outside of Michigan. In the two concurrences and two dissents, the justices tackled many arguments in the controversial discussion on pronouns and contributed to the debate about gender identity, pronouns, compelled speech, and diversity. Other courts will surely cite to, and grapple with, Michigan’s analysis when similar questions arise elsewhere.

[1] See, e.g., United States v. Diamond, 615 F. Supp. 3d 332 (E.D. Pa. 2022) (where transgender prisoner legally changed name under state law, Bureau of Prisons was required to change prison and court records to reflect name change).

[2] See, e.g., United States v. Varner, 948 F.3d 250, 254–55 (5th Cir. 2020) (federal court cannot require judicial staff, litigants, or anyone else to refer to litigants with gender dysphoria using pronouns matching gender identity).

[3] Order, Amendment of Rule 1.109 of the Michigan Court Rules, ADM File No. 2022-03, 10 (Sept. 27, 2023) (Zahra, J., dissenting).

[4] MI R CJC Canon 2(B).

[5] Order, supra note 3, at 1.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 2.

[12] Id. at 2–3.

[13] Id. at 3–5.

[14] Id.

[15] Id. at 5.

[16] Id.

[17] Id. at 7.

[18] Id. at 7–9.

[19] Id. at 8–9.

[20] Id. at 9.

[21] Id. at 10.

[22] Id.

[23] Id. at 11.

[24] Id. at 12, n.11.

[25] Id. at 12.

[26] Id. at 14.

[27] Id. 

[28] Id. at 15.

[29] Id.

[30] Id.

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