MISGENDERED? - NOT IN OUR COURTS!

by larissa zubac (ingham county)

The Michigan Supreme Court is blazing trails with implementation of its most recent amendment to MCR 1.109(D)(1)(b).  Now, when addressing parties to an action, “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.”  The rule further specifies that preferred forms of address may include Ms. Mr. or Mx., as the parties or counsel prefer, and pronouns shall include he/him/his, she/her/hers, or they/them/theirs. Michigan is the first state to enact such a court rule. MCR 1.109(D)(1)(b). The Rule passed by a 5-2 vote, and went into effect January 1, 2024.

​The change creates space for counsel and parties to provide the court with their preferred pronouns and salutations.  “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. . .” stated Justice Welch in her concurring opinion regarding the rule. MCR 1.109(D) (Welch, J., concurring).

This inherently hot topic did not go without debate and dissent, before becoming a rule. Arguments against the change largely consisted of concern over grammatical confusion, record confusion, and personal beliefs. Largely, the dissenting Justices expressed concern over the Court wading into social and political issues and whether that would cause the public to lose confidence in the courts by choosing a side, instead of instilling the same. As Justice Zahra argued in his dissenting opinion, the Catholic Lawyers Society of Metropolitan Detroit succinctly pointed out that “[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.”  MCR 1.109(D) (Zahra, J., dissenting).
​
Justice Kyra Bolden, in an effort to mitigate concern, wrote in her concurring opinion that this amendment is not a landmark decision or change, but is simply a mirroring of what is already expected of us all by the Judicial Canons; The amended rule provides a more detailed example of how judges must act to uphold the requirements of the Canons. Moreover, the rule is also an opportunity for the public to ask to be acknowledged the way that they would like, thus treating them with respect and dignity, and provides an opportunity for judges to ensure those accessing the courts are in fact, being treated with respect and dignity. MCR 1.109(D) (Bolden, J., concurring).