Amendment of Rule 1.109 of the Michigan Court Rules, Michigan Supreme Court (Sept. 27, 2023):
On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, the following amendment of Rule 1.109 of the Michigan Court Rules is adopted, effective January 1, 2024. …
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 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. …
Staff Comment (ADM File No. 2022-03): The amendment of MCR 1.109(D)(1)(b) allows parties and attorneys to provide a preferred salutation or personal pronoun in document captions and requires courts to use one of the following means of addressing, referring to, or identifying the party or attorney: the individual’s name, preferred salutation, personal pronoun, or other respectful means that is not inconsistent with the individual’s designated salutation or personal pronoun.
The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court. …
WELCH, J. (concurring).
I fully support the Court’s amendment of MCR 1.109(D). As former Chief Justice MCCORMACK once observed, “[p]ublic confidence is the only currency that courts and judges have, and impartiality is central to public confidence.” McCormack, Staying Off the Sidelines: Judges as Agents for Justice System Reform, 131 Yale L J Forum 175, 181 (2021). Chief Justice Burger of the United States Supreme Court long ago shared the same commitment to the basic principle that “[a] sense of confidence in the courts is essential to maintain the fabric of an ordered liberty for a free people.” Burger, State of the Judiciary: 1970, 42 NY St B J 589, 597 (1970). I write separately to briefly explain why I believe amending MCR 1.109(D) is a positive step forward that will bolster public confidence in the judiciary and help to promote a sense of fairness among members of the public who interact with the courts.
Our courts and court staff must conduct business in a way that is cognizant of changes in language and societal norms. The amendments to MCR 1.109(D) reflect that basic truth and acknowledge that with changes in our society, our vocabulary also evolves. In order to be fair and impartial, courts, as the face of the third branch of government, must conduct business in a way that does not give the appearance of misgendering individuals, intentionally or otherwise. A primary goal of this change is to ensure that the judiciary operates in a manner that is objectively respectful of the individual identity and personal pronouns of the members of the public that we serve, regardless of the subjective viewpoints of individuals working within the court system. I agree with Justice BOLDEN that the MCR 1.109 amendments are not a landmark change given the long-existing requirement that all judges must treat those before them respectfully.
It was not that long ago that many judges would not permit a female attorney to use the salutation “Ms.” instead of the unmarried “Miss” or married “Mrs.” The salutation was the subject of much debate, which today has largely been forgotten. Later generations of attorneys would likely be confounded by the notion that women in court had to use a salutation that indicated marital status while men faced no such requirement. Society has, thankfully, long moved past that debate. Judges no longer have to know the marital status of female attorneys appearing before them in order to professionally address them in court. Today, requiring the use of “Miss” or “Mrs.” in court would be not just antiquated, but also disrespectful and discriminatory. Extending the use of gender neutral or personally specified pronouns to litigants or parties reflects another societal shift. It also aligns with the Legislature’s recent amendment of the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., to explicitly prohibit discrimination on the basis of sexual orientation or gender identity, see 2023 PA 6.
It is not a secret that the notion of honoring a person’s specified pronouns has become a source of much debate. The judiciary has certainly not been immune to this, as evidenced by extensive comments submitted and testimony offered at the public hearing in response to the proposed rule change. The objections tend to be three-fold: (1) grammatical confusion, (2) record confusion, and (3) personal beliefs. …
Judges are ultimately public servants. We serve the entire public and are required to treat those who come before us with civility and respect. The gender identity of a member of the public is a part of their individual identity, regardless of whether others agree or approve. Additionally, it is not always possible to know someone’s personal pronouns based solely on visual observation, and allowing parties and attorneys to identify their personal pronouns for the courts removes ambiguity and the risk of misgendering an individual. This rule provides much needed guidance and provides courts with several options for how to respectfully address parties and attorneys who wish to designate a specific salutation or personal pronoun. See MCR 1.109(D)(1)(b). The amendment of MCR 1.109(D) will help to promote and preserve the judiciary’s credibility and currency with the public that we serve while also providing guidance to judges and court staff. …
BOLDEN, J. (concurring).
I fully agree with the Court in adopting this amendment. I write to demonstrate my support and mitigate potential concerns raised during the public comment process. To me, this amendment of MCR 1.109 is not landmark. Rather, it mirrors the expectations found in our judicial canons. The amendment seeks to spell out what the judicial canons require and provide an avenue for litigants and attorneys to ask to be acknowledged in a certain way and thus treated with dignity. It aims to prevent judges from discriminating based on gender identity. It ensures that judges respect people. Allowing individuals to include their personal pronouns in filings affords judges the opportunity to ensure those appearing before them receive the respect they deserve. The judicial canons already require treating every person with courtesy and respect without regard to a person’s race, gender, or other personal protected characteristic. This amendment is merely a more detailed example of how judges must act to meet the requirements articulated in the canons, and it is in line with our antidiscrimination caselaw, statutes, and policies.
Judges must set aside personal biases when overseeing judicial proceedings. There are three requirements within the canons that this amendment provides guidance and clarity about. They all boil down to how judges are expected to treat individuals in their courtrooms. First, “judge[s] should always be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary.” Code of Judicial Conduct, Canon 1(A). Second, “[w]ithout regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.” Id. at Canon 2(B). Third, “[w]ithout regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect,” and “[t]o the extent possible, a judge should require staff, court officials, and others who are subject to the judge’s direction and control to provide such fair, courteous, and respectful treatment to persons who have contact with the court.” Id. at Canon 3(A)(14). In sum, the canons emphasize the expectation that judges will treat litigants with fair, courteous, and respectful treatment. This amendment merely falls in line with what judges are already required to do. …
Within the last few years, the United States Court of Appeals for the Fifth Circuit decided against “compelling” pronoun use for the sake of judicial impartiality and clarity. United States v Varner, 948 F3d 250, 255-258 (CA 5, 2020). However, Varner does not represent binding authority. See People v Lucynski, 509 Mich 618, 638 n 10 (2022) (“The decisions of intermediate federal courts are not binding on this Court, although they may be considered for their persuasive value.”) Nor does Varner preclude this Court from exercising its rulemaking authority to enact this amendment.
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.6 We are sending a signal that “[a]ll members of the public are entitled to inhabit public spaces on equal terms.” 303 Creative LLC, 600 US at ____; 143 S Ct at 2341 (Sotomayor, J., dissenting). This is a step in the right direction. Adopting this amendment makes Michigan courts more welcoming and inclusive for all. …
ZAHRA, J. (dissenting).
I dissent from the implementation of this rule. As the United States Court of Appeals for the Sixth Circuit noted, “the use of gender-specific titles and pronouns has produced a passionate political and social debate.” The hundreds of comments both supporting and opposing this proposed rule attest to this division. Some believe that the use of preferred pronouns is simply a matter of courtesy and that those who oppose it are stubborn, perhaps even bigoted. Others, however, believe they should not be compelled, especially under oath and/or in conflict with their deeply held religious beliefs, to affirm a person’s preferred pronouns that are inconsistent with the biological gender on that person’s birth certificate. 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. Such hubris has no place within the operation of a judicial branch of state government. As aptly stated by the Catholic Lawyers Society of Metropolitan Detroit, “[t]he Court should decline to insert itself into one of the most controversial social issues of our time, declare a winner, dismiss objections as mere products of bigotry, and threaten to punish dissenters whilst ignoring their constitutional rights.” I am deeply troubled by the Court’s willingness to do so.
To the extent this Court is merely attempting to ensure that all litigants are treated respectfully, this rule change is entirely unnecessary. Our Code of Judicial Conduct, Canon 2(B), provides that “a judge should treat every person fairly, with courtesy and respect.” This is accomplished without the proposed rule. To the extent a litigant requests use of a pronoun inconsistent with the biological gender reflected on the litigant’s birth certificate, courts should have the discretion to accommodate that request in deference to the litigant’s wishes or, alternatively, refer to the litigant without using any pronouns. In this way, judges will not be required to act inconsistent with their religious beliefs, and every litigant will be treated with courtesy and respect. Certainly, if a judge elects to reject the use of personal pronouns or the use of a gender-neutral method of identifying a litigant or lawyer, and instead uses pronouns inconsistent with those desired by the litigant simply to demean that litigant, such conduct would violate the Code of Judicial Conduct, Canon 2(B). But what if a judicial officer fails to use a preferred pronoun out of a sense of religious conviction? I have little doubt that this question will one day be resolved by the Supreme Court of the United States. Until that time, this Court should do everything in its power to avoid taking sides in this social debate.
This proposed rule change is much worse than a solution in search of a problem; it is a directive that will undoubtedly inflame conflict and exacerbate the social division of the people of Michigan. Let us not overlook the fact that it is decidedly rare for a litigant to request that a court use a preferred pronoun that is inconsistent with the biological gender reflected on the litigant’s birth certificate. The first noted instance in our courts was in December 2021, when a Court of Appeals judge wrote a concurring opinion explaining why he would not abide by a criminal defendant’s preference to be referred to by the pronouns “they” and “them.” The concurring opinion was zealous, but not disrespectful. It simply defined this emerging issue to the Michigan judicial system. It is unprecedented for this Court to take such swift action in the face of such a novel and evolving issue. The swiftness with which the Court imposes this rule does not account for the actual problems that it is certain to create. …
In sum, the rule adopted by a majority of the Court will create problems and will only cause confusion within our courts. The majority’s good intentions on this matter will only impede the efficient administration of justice in our courts. Judges are already obligated to treat everyone with courtesy and respect.16 And judges can treat everyone with courtesy and respect by avoiding personal pronouns and referring to litigants and attorneys by court-appropriate designations, such as plaintiff [last name], defendant [last name], counselor [last name], witness [last name], etc. Courts already often engage in this practice particularly when writing in criminal cases with multiple defendants and civil cases with several parties. I trust that our judges will continue to treat all persons with courtesy and respect. I dissent from the promulgation of this court rule that unnecessarily compels judges to use a litigant’s or attorney’s preferred personal pronoun. …
VIVIANO, J. (dissenting). I agree with Justice ZAHRA’s dissenting statement and write separately to offer a few additional reasons why the rule the Court adopts today is ill-founded. In explaining the motivations behind the rule, Justice WELCH’s concurrence cites a former colleague’s article advocating for judges to act as activists for change in the legal system. McCormack, Staying Off the Sidelines: Judges as Agents for Justice System Reform, 131 Yale L J Forum 175, 181 (2021). The article attempted to soften its jarring call to action by focusing on “improvements” in the justice system. Id. at 184. But the danger, as seen today, is that judges emboldened to seek improvements rather than neutrally administer the law will wade into socially and politically fraught topics that have little to do with the judicial system. It is sadly consistent with this Court’s recent practice. See, e.g., Administrative Order No. 2022-1, 508 Mich ___, ___ (VIVIANO, J., dissenting) (“I dissent from today’s order establishing the Commission on Diversity, Equity, and Inclusion, a catchphrase that is politically fraught—and for that reason alone should be approached with extreme caution by the judicial branch.”).
The majority, according to Justice WELCH, undertakes this quest, in part, to increase public confidence in the courts. Again, our former colleague explained this way of thinking:
Nothing undermines public confidence more than the perception that the judicial system is broken, rigged, or overseen by judges who are indifferent to the experiences of human beings. Judicial participation in reform efforts does not undermine public confidence; it provides evidence that such confidence has been earned. [Staying Off the Sidelines, 131 Yale L J Forum at 188.]
This appears to be premised on a circular logic: by breaching norms and traditions restraining judges from policymaking, judges can demonstrate that the confidence reposed in them is “earned.” Seeking reforms thus generates the public confidence necessary for the courts to function and for judges to, I suppose, seek even further reforms. That cannot be the case. By that reasoning, change is an end in itself. But that can hardly be what our former colleague, or the majority today, means. They would of course not support a reform that strongly encourages judges to refer to parties and attorneys based on their biological gender at birth. Thus, change and improvement means reforms that impose one side’s view.
When the topic is political, as it is here, such actions can only undermine the public’s confidence in courts’ ability to serve as impartial arbiters of the law. The old saying that “turnabout is fair play” should counsel caution. The membership of this Court changes, and majorities with different perspectives succeed one another. A majority with a different outlook might view the Court’s present action as empowering them to implement rules that would be anathema to the present majority. Indeed, such a majority could seek to implement a rule contrary to that adopted today. What would stop it? This Court’s repeated forays into such topics set a precedent for this Court to dabble in politics through our rulemaking authority. And all the arguments that the concurrences employ against the constitutional concerns with the present action could in turn be employed to support the opposite rule. I have my doubts that the majority would be so cavalier about the First Amendment implications of their actions if the shoe was on the other foot. …
Only in this way, through the impartial adjudication of cases and administration of the courts, can we earn the confidence of the public and be worthy of that confidence. When courts dabble in politics, they invariably alienate the losing side of the political debate and forfeit legitimacy with large portions of the public. Bork, The Tempting of America: The Political Seduction of the Law (New York: Simon & Schuster, 1990), p 2; see generally AO 2022-1, 508 Mich at ___ (VIVIANO, J., dissenting) (noting the “danger when courts wade into hotly disputed social issues”). By once again taking stances in a political debate, the Court will not earn the public’s trust, nor should it. Rather than instilling confidence, the result, I fear, will be to encourage the view that this Court is a political institution. If this view becomes entrenched, both sides may seek to use the judicial power to advance their own political ends. And all that will matter in adjudicating cases and administering the courts is the achievement of “politically desirable results[.]” The Tempting of America, p 1. This would be a tragic result for the rule of law and the people of Michigan. I therefore dissent.
