Misgendering still happening in California courts

Misgendering - referring to someone with a pronoun that does not reflect their gender identity - occurs in California courts more often than one would expect given the state's liberal reputation, legal experts say. Whether it affects case outcomes, and who should be responsible for policing the matter, is not entirely clear.

Samson Spiegelman, a sole practitioner in employment law who often represents transgender clients, said that he regularly encounters instances of misgendering in the court room or at the pre-trial stage.

"We think we have this liberal bubble. ... From LA and the Bay to the more conservative counties, there's people who are just misgendering. People just are not experienced or comfortable with the concept of transgender people," Spiegelman said.

Often, the behavior is not intentional, but a result of a lack of understanding about gender identity, he added.

"I think that what I've seen most often, is not people... other attorneys, that they're not necessarily being intentionally hostile. But they'll just not understand like, what direction someone's going in, as far as what their gender is, or should be," he said.

Chan Tov McNamarah, visiting assistant professor of law at Cornell Law School, agrees that the problem is more widespread than many people expect. The law school has addressed the trend in research articles published in the online component of the UCLA Law Review, the California Law Review and the Virginia Law Review.

"I think that it was more widespread than was recognized at the time that I wrote the article [for the UCLA Law Review]. I was looking at the amicus briefs of trans cases or cases, including trans plaintiffs, and recognized how frequently opposing counsel was using the wrong pronouns, and it was kind of striking to me," McNamarah said.

Their research began when U.S. Supreme Court clerk Scott S. Harris reprimanded groups who misgendered a plaintiff, Gavin Grimm, in amicus briefs. G.G. v. Gloucester County School Board.

For the clerk to do that was "pretty significant," McNamarah said.

"So, both of those things kind of triggered me recognizing that there was a larger pattern here. And then I think, subsequently, when I was doing research for the follow-up article that was looking at misgendering by judges I recognized that it was a problem in the judiciary as well," McNamarah said.

Significantly, misgendering often occurred in cases where issues of identity were not central to the matter at hand.

"It's not just cases where gender is an issue. And in fact, mostly these are cases where gender is not an issue entirely. And misgendering is kind of an add-on, an additional dig at the trans party. So, it's cases where, you know, workplace harassment that had nothing to do with gender identity, sexual harassment that had nothing to do with gender identity. And in addition to making the standard arguments, the usual kind of tit for tat that happens sometimes in litigation, unfortunately, there's just an additional way to add another harmful issue to your repertoire of attacks on opposing counsel, on opposing parties," McNamarah said.

Such conduct put transgender parties on an unequal footing, Spiegelman said.

"The judge is not like. 'Is everyone imagining what I look like under my robes?' The judge is like, 'I'm here doing my job.' So, it really puts you on this unequal psychological footing and it really is very vulnerable and can be really distressing," he said.

In 2020, when the UCLA piece was published, McNamarah recommended that State Bars take the lead in adopting rules to address the practice of misgendering as attorney misconduct.

"I think my views have changed slightly towards judicial regulation [since then], because of judges' duty to control the courtroom and make sure that everyone is respected within that. I think that solution has also been faster moving than I thought it would be," said McNamarah, who uses "they" as a pronoun.

They cited the 2023 passage of Michigan Court Rule 1.109, which prohibits misgendering by judges, as a recent development in the space, although they acknowledged that there remained a "lingering discomfort" with the regulation of attorney speech. The Michigan Rules addressed a common argument by misgendering parties: that to use someone's preferred pronoun would undermine their legal argument.

"Even if judges feel uncomfortable telling an attorney what to say they can prevent them immediately from using discriminatory language. So, in the [Michigan Rules] in the footnote, it states that there's a difference between using the wrong pronoun and choosing to use a respectful alternative. So, [the attorney] may not refer to you with the pronoun, the gender appropriate pronoun, but [they] can still refer to you as 'counselor last name,' or 'plaintiff last name,' and that's just as respectful, or that is respectful....," McNamarah said.

Spiegelman said existing laws already safeguard against misgendering during court proceedings in California but argued they need to be better enforced.

"I personally interpret it as a competency issue, first of all, so that's just Rule 1.1 [of the Rules of Professional Conduct]. But that one's kind of a stretch, but there's others that are more directly on point," Spiegelman said.

"So, in CACI [Judicial Council of California Civil Jury Instructions] during the model jury instructions, No. 118 says specifically, attorneys and courts should take affirmative steps to ensure that they are using correct personal pronouns to comply with state policy, according intersex, transgender and non-binary people full legal recognition and equal treatment under the law."

"California Bar Rule 8.4.1 is the general nondiscrimination and harassment rule, and it does call out gender identity," he added.

The California Code of Judicial Ethics, for governing the judges, includes Canon 3B(6, which says, "A judge shall require lawyers and proceedings before the judge to refrain from manifesting by words or conduct bias or prejudice based upon" all the protected statuses including sex and gender, against parties, witnesses, counsel or others."

Each of these provisions could be interpreted to provide adequate regulation of the repeated or intentional misgendering of parties to a proceeding, Spiegelman said.

"There's plenty of rules in place. I think we're good on the rules front. I think it's twofold. One, the State Bar in all respects, does not enforce its own rules, except in very narrow circumstances, right? So, they'll enforce IOLTA [Interest on Lawyers Trust Account] issues. And that's it, right?" Spiegelman said.

He added, "They are not investigating complaints. They're not taking action against attorneys, especially in issues of equity, right? So, they need to enforce the rules that already exist."

A spokesman for the bar, Rick Coca, said "The State Bar takes seriously complaints of unlawful discrimination or harassment and will pursue discipline where the facts support it."

He said the bar's ability to deal with complaints pertaining to misgendering would be bolstered if its proposed measures to improve the civility of attorneys are accepted by the California Supreme Court.

Those measures were adopted by the bar board in July and are based on recommendations from the California Civility Task Force, a group of more than 40 lawyers and judges.

"What we can say is that if the California Supreme Court decides to incorporate the civility clause recommendations made by the California Civility Task Force, there would be a more precise statute on the books that would allow the State Bar to act on issues like misgendering, should the specific facts and circumstances involved so warrant," Coca wrote in an email.

The proposed changes include amendments to California Rule of Court 9.7 to require lawyers to annually affirm or reaffirm their civility oath; a new State Bar Rule 2.3 to implement the changes to the oath; and amendments to the Rules of Professional Conduct to make incivility a basis for discipline.

Under the current rules, misgendering would need to be considered prejudicial to the administration of justice for the bar to pursue disciplinary action, Coca wrote.

"While not common, the conduct would need to rise to the level of an 8.4(d) (conduct prejudicial to the administration of justice), for discipline to be pursued, or via 8.4.1 (unlawful harassment/discrimination - note, this doesn't relate to an opposing party)," Coca wrote.

Merrill Balassone, speaking for the California Supreme Court confirmed on Thursday that those changes were still pending before the court, with no indication of when they would be decided upon.

Case law does provide some insight into the standards expected of legal parties. Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795, for example, found that a trial court can admonish counsel to use the litigant's preferred pronouns.

Most recently the case of People v. Zarazua addressed the interplay between misgendering and prejudicial conduct. The case involved the trial of a male-identifying defendant whom the prosecutor repeatedly misgendered. The prosecutor apologized to Zarazua for the misgendering. The Court of Appeal wrote: "Parties are to be treated with respect, courtesy, and dignity -- including the use of preferred pronouns. Failure to do so offends the administration of justice." People v .Zarazua 85 Cal.App.5th 639 (Cal. Ct. App. 2022)

Zarazua had filed for a mistrial because of the misgendering, stating that the failure to use masculine pronouns constituted prosecutorial misconduct which, in the absence of curative admonition from the judge, was prejudicial.

"[In the Zarazua case], that did seem accidental. And quite unusually, on appeal, the misgendered party made the argument that the accidental misgendering was evidence of bias and the case should be overturned. The appellate court did acknowledge that misgendering was harmful. But they did not overturn the case because they did not think that the introduction of bias had altered the holding of the jury's finding sufficiently, which is a rather harsh, high bar on appeal. So that I think makes sense," McNamarah said.

For its part, the State Bar said questions regarding whether misgendering would prejudice a case were a legal matter up to the individual court.

Both McNamarah and Spiegelman drew a distinction between accidental and intentional misgendering and stated that there should be a difference in how each is handled. They also argued that education plays a key role in reducing accidental misgendering.

"So, there is very intentional misgendering, which I think is morally just abhorrent. But I think that there is some recognition that mistakes do happen. And they happen in every sense of the use of terms of address and reference to people. We accidentally butcher someone's name, having just read it, but never heard it in person. And I think that's perfectly understandable, though not harmless," McNamarah said.

"In those instances, I think that the correct course is just apologizing and moving on. I think most people are very understanding about that in court. I think it should be called out; I don't think it necessarily should be sanctioned," they added.

Given that the "standard for a mistrial is so high," a better way to treat repeated misgendering was as negligent conduct that warranted some form of disciplinary action, Spiegelman said.

"I would contextualize misgendering and dead naming as the same as the use of other offensive language in other contexts... maybe that's not going to cause a mistrial, but it's certainly going to have some, something's going to happen, right?" he said.

"A single misgendering that's promptly corrected is not going to rise to the level of like negligent misgendering maybe not, but if you're like someone who's like, just not trying not taking care, or intentionally misgendering, then that's something that I think should have some consequence," he added.