Michigan courts adopt pronoun rule

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP

Could this catch on?

On Wednesday, the Michigan Supreme Court became the first state court system in the United States to adopt a rule regarding use of preferred pronouns in court proceedings. The rule, which will take effect January 1, states as follows:

“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.

Eugene Volokh notes that the rule seems to leave the door open for more traditional judges and court personnel to refer to parties and attorneys by last name only, as "Plaintiff" or "Defendant," or as "Counsel." "Attorney [Last name]" is probably fine, too. At least as long as they're consistent in using these terms.

Here is a copy of the new rule.

Two of the Supreme Court justices -- Brian Zahra and David Viviano, both initially appointed by Republican former Gov. Rick Snyder but subsequently elected -- dissented on a number of grounds, arguing that the rule is subject to abuse, that use of the singular "they" is ungrammatical and confusing, that certain use of pronouns might violate the sincerely held religious beliefs of some judges and court personnel, and that, in a rape trial, it might be traumatizing and embarrassing for a victim to hear a transgender accused rapist be referred to as "she/her/hers." Justice Viviano said that the Michigan Court should wait for further guidance from the U.S. Supreme Court before getting involved in controversial social issues.

According to Justice Viviano, adoption of the pronoun rule was prompted by a state Court of Appeals dissent from 2021 in a sexual assault case. This article explains the controversy and has a link to the dissent. 

I'm still marveling that Michigan beat California on this issue. Will wonders never cease! I have a hunch that other states will follow.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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