Judges Trying To Remain Neutral on Preferred Pronouns

In a few years, lawyers, judges and scholars will look back at opinions written over the past few years and think one of a few things. Are they watching the budding of a new appreciation of gender identity and the rise of courts twisting their decisions to reflect the personal pronoun choices of litigants. play out in legal decisions. Are they watching dinosaurs try to cling to the old ways of objective gender identity or use of pronouns and refusing to twist the language of decisions around the personal “dignity” of litigants.

Or are they watching judges who want to neither acquiesce nor offend and don’t know what the proper reaction should be, and therefore go on at silly length about their reasons for falling on one side of the other of a cultural divide, made necessary so they don’t appear to be playing woke or anti-woke jurists and so their writing isn’t incoherent nonsense gibberish laden by fanciful wording that gives readers a headaches and exposes opinions to confusion and pointless inconsistency? Oh wait, it’s not pointless. It recognizes the “individual dignity” of a litigant’s expectation that the court honor his/her/their/xir/its pronoun du jour, as in In the Interest of C.G.

Because Ella [the pseudonym the parties used for the petitioner] entered the juvenile justice system as a male, many relevant records——including records prepared at the direction of Ella’s appellate counsel——refer to her using male pronouns. When quoting those records, we use those pronouns. Elsewhere in our opinion, however, we use female pronouns out of respect for Ella’s individual dignity. All parties and amici curiae used her preferred pronouns in their briefing, and the court of appeals used them in its published opinion.

Everyone went along with the convention of someone who was as of then calling herself “Ella” and using female pronouns because, as Justice Rebecca Grassl Bradley noted, the court wanted to show respect for “Ella’s individual dignity.” While feeling it necessary to simultaneously explain the textually conflicted pronoun usage, Justice Bradley similarly felt it worthwhile to state the the court wasn’t taking sides in the controversy.

We recognize the use of preferred pronouns is a controversial issue. No law compels our use of Ella’s preferred pronouns; we use them voluntarily. Our decision to do so bears no legal significance in this case, nor should it be construed to support their compulsory use.

Is this an assertion that the court isn’t being woke because it must, but because it wants to be? It certainly appears to say exactly that, and yet in response to Justice Hagedorn’s view, the court also contends that its choosing to side with the woke position on preferred pronoun usage is the neutral position.

Although cautioning courts to “remain scrupulously neutral” with respect to the use of pronouns, Justice Brian Hagedorn does not recognize in his concurrence that referring to Ella as C.G. will be seen as a partisan choice by many readers. The “ontological and moral question[]” over pronouns is neither legal in nature nor within the scope of the issues presented. We join the parties and the court of appeals in referring to Ella using her preferred pronouns.

In addition to showing respect for Ella’s individual dignity, using the same convention as the parties ensures we “remain scrupulously neutral”——in contrast, Justice Hagedorn uses a convention even the State, which is adversarial to Ella, has chosen not to use. The only alternatives to choosing between masculine and feminine pronouns in this opinion would either offend the rules of grammar (the singular “they”) or produce a stilted writing (exclusive use of proper nouns).

Justice Hagedorn disagrees with this position.

I write separately to address a sensitive matter. The majority/lead opinion explains that it uses “female pronouns out of respect for Ella’s individual dignity,” acknowledging “[n]o law compels our use of Ella’s preferred pronouns; we use them voluntarily.”  The dissent and the court of appeals make the same editorial decision. Whether to use an individual’s preferred pronouns, rather than those consonant with one’s biological sex, presents ontological and moral questions about our identity as human beings. It is a matter deeply personal to those who wish to be called by certain pronouns, and to many who are asked to call others by their preferred pronouns.

It’s curious that Justice Hagedorn characterizes it as “deeply personal” rather than take a more cynical view of pronoun policing as a power play.

These relatively new cultural debates are, in the main, not questions courts are well-equipped to answer. As a court of law, we should do our best to remain agnostic regarding debates where the law does not supply an answer. This is motivated in part by the modest nature of the judicial role, and in part out of the prudential concern that these contested moral matters could soon become contested legal matters.  The court’s decision to use female pronouns could be misread as suggesting that someone who identifies as a female is in fact a female, under the law or otherwise. See also United States v. Varner (5th Cir. 2020) (presenting additional reasons why the court’s use of a party’s preferred pronouns could prove problematic). We should aim to avoid any unintended legal consequences of our language choices.

Much as courts, and judges, are ill-equipped to decide cultural or moral questions, despite expectations to the contrary, the issue raised here is what position is neutral? More to the point, there are sound arguments for a court to go either way, even if they may later make the court, and judges, look goofy for their use of the day’s version of “groovy” which was in favor for a brief and shining moment and then was never uttered in earnest again.

If it matters, perhaps the context of the underlying fact pattern of the case in which this issue arose will help to clarify which position should prevail.

Petitioner C.G. was found to have sexually assaulted a 14-year-old boy (whom the opinion calls Alan, a pseudonym) who had been “diagnosed with autism” and who was apparently working in school at three grades below his age level.

At the time, C.G., who was 15 and who would a year later be 300-345 pounds and 6’4″ or 6’5″, was apparently perceived by people, or at least by Alan, as male. The court notes that, though, C.G. “questioned her gender identity throughout her adolescence,” “she began to express ‘thoughts of transitioning'” after “the State filed a delinquency petition” based on the sexual assault. In the assault, C.G. and a female classmate held down Alan (who was 110 pounds and 5’10”) and covered his mouth while C.G. performed oral sex on Alan. The opinion notes that “Alan is a heterosexual male,” who objected precisely because “he ‘did not want to get “head” from a guy.'”

Much as the word “respect” and “dignity” find their way into the debate, perhaps the better word choice is “courtesy” sine respect is something to be earned and dignity is reflected in the behavior of an individual worthy of respect, not how others treat him, or her, to conform to the current fashion trend.