Illinois may soon get its first formal policy specifically laying down written rules on how to use pronouns in courtrooms, as the Illinois Supreme Court awaits possible recommendations from a special committee on how to handle the “preferred names and pronouns” of transgender judges, lawyers and others working and participating in the state’s legal system.
Christopher Bonjean, chief communications officer at the Illinois Supreme Court, said the “subcommittee continues to work on proposals regarding preferred names and pronoun policies,” but has not yet sent any report or proposal for formal consideration to the Illinois Supreme Court or any of its established committees, like the Committee on Equality.
Lena Shapiro
| University of Illinois College of Law
Illinois, however, is just one of several states currently at some stage in the process of revising or creating rules specifically to address pronoun usage.
In Michigan, that state’s Supreme Court is considering new rules for courts to follow regarding the usage of pronouns in the courtroom. A proposed amendment of a standing Michigan court rule “would allow parties and attorneys to identify their personal pronouns and would require courts to use those pronouns both verbally and in writing, unless doing so would result in an unclear record.”
Hundreds of public comments have been posted on the Michigan state courts website, with heated remarks both in favor of and against the proposal, showcasing the charged environment surrounding the topic of gender identity and pronoun usage.
In Illinois, the discussion comes at a historic moment. In 2020, Cook County Judge Jill Rose Quinn made history when elected as the state’s first openly transgender circuit court judge and the first openly transgender elected official in Illinois. Quinn also was just the fourth openly transgender judge in U.S. history.
According to the Cook County Circuit Court's website, Quinn is currently assigned to the court's Traffic Division.
Spokespeople for the Supreme Court said the need for a subcommittee to explore potential new rules doesn’t mean lawyers or judges can’t now potentially face consequences for identifying others in court by an undesired gender expression.
They point to Illinois Rule of Professional Conduct 8.4, which declares it to be professional misconduct for lawyers in Illinois to “violate a federal, state or local statute or ordinance including, but not limited to, the Illinois Human Rights Act that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer’s fitness as a lawyer…”
That rule itself became effective in January 2023. It was rewritten in May 2022, a month after McHenry attorney Sheryl Ring, who is transgender, won a declaration from a court declaring Illinois was discriminating against transgender individuals by not having ethics rules in place specifically banning discrimination based on gender identity.
Ring specifically cited to the U.S. Supreme Court’s 2020 ruling in Bostock v Clayton County, which held that Title VII’s ban on sex discrimination also extended to transgender and gay workers.
In the complaint, Ring spoke of significant experiences of anti-transgender discrimination in the courtroom, including being told by an arbitration panel that a transgender lawyer was mentally incompetent to represent clients.
Deanie Brown, chief diversity and inclusion officer for the Illinois Supreme Court, said the lawyers who violate the revised rule could be accused of “professional misconduct and they would face the consequences of those actions.”
“The Illinois Supreme Court is committed to diversity and inclusion throughout our court system,” Brown said.
Brown noted the potential discipline would be handled for lawyers by the Illinois Attorney Registration and Disciplinary Commission, and for judges, by the Judicial Inquiry Board and the Illinois Courts Commission.
Professional misconduct or contempt of court?
But while those rules may professionally govern attorneys working in Illinois courts, the election of Quinn and potentially more transgender judges raises the question: What happens if attorneys or litigants intentionally use pronouns other than those listed by the judge?
“Practically speaking, you refer to the Court as ‘the Court’ or ‘Your Honor,’” said Lena Shapiro, a professor and the inaugural director of the new First Amendment Clinic at the University of Illinois College of Law. “So, from a logistics perspective, I don’t know how often that would come up, unless [someone is] responding with ‘Yes sir,’ or ‘Yes ma’am.’”
Shapiro agreed that if an attorney intentionally engages in such behavior toward a judge, it could violate state ethics rules.
But Shapiro said judges may have other avenues, as well.
“The judge could go a couple of different routes,” she said. “If you anger the judge, the judge may not discipline you, but you’ve created a poor relationship with the judge.
“Option 2, I suppose the judge could hold you in contempt and sanction you,” she continued.
“That possibility just sounds very farfetched to me. But once a judge holds you in contempt, the attorney could file an appeal of that order, and it would go up to the appellate court, and they would decide whether the judge could order that someone use correct pronouns – including when it comes to the court – and [whether] the fine or punishment was appropriate. I wouldn’t be surprised if a case arose challenging a judicial order requiring the use of correct pronouns.”
Suja Thomas, a professor of law at the University of Illinois College of Law, agreed with her colleague that judges could seek to hold people in contempt of court for deliberately misgendering a judge.”
But Thomas, who specializes in discrimination law in public accommodations, said she did not believe it to be likely.
Contempt is committed with the intent to impede court authority, Suja said, noting that the definition “is written relatively broadly using the term ‘embarrass.’”
“To me, that’s not really what is the focus,” she said. “It’s really going to be: Do judges themselves respect the pronouns of the litigants and attorneys?
“Lawyers, litigants and defendants want the judge to be on their side, so there is no incentive for all of those individuals to treat the judge with disrespect. So, because of that, I don’t see misgendering of the judge as being a big issue going forward,” Thomas said.
“Instead, I see the bigger issue being how will courts treat the actual litigants, lawyers and defendants.”
Editor’s note: This is Part 1 of a two-part story addressing the possibility of new court rules governing the use of pronouns in courts in Illinois and elsewhere. In Part 2, published May 31, The Cook County Record discusses more concerning how the courts may balance such new rules against the First Amendment and religious accommodation laws.