Editor's note: This is Part 2 of a two-part story addressing the possibility of new court rules governing the use of pronouns in courts in Illinois and elsewhere. Part 1, published May 30, reported the work of a special Illinois Supreme Court subcommittee to potentially recommend new rules governing the use of pronouns in court, and discussed the personal and professional risks faced by those who may choose to refer to people by pronouns other than those they choose.
In coming weeks, Illinois’ highest state court may soon begin considering further rewriting court rules to specifically govern how judges and attorneys should use pronouns and other gendered terminology when talking to and about people in the court system.
And as Illinois and other states advance such rules, they could ultimately invite legal challenges, as courts wrestle with a potentially sticky question of how to balance people's perceived rights to be addressed as they believe they should against the rights of others to free speech and religious accommodation.
Suja Thomas
| University of Illinois College of Law
The Illinois Supreme Court’s Committee on Equality is awaiting possible recommendations from a special subcommittee on “Pronoun and Preferred Name Usage/Gender Identity Policy.” Those recommendations could later be used to create formal rules.
The Cook County Record reached out to the chair of the Committee on Equality, Winnebago County Judge Joseph McGraw, to discuss the committee's work. But attempts to contact McGraw through his office were unanswered.
The work of the subcommittee makes Illinois one of a growing number of states instituting or considering such rule changes. In Michigan, for instance, that state’s high court has collected public comments on proposed rules governing pronoun usage in that state’s courts.
Suja Thomas, a professor of law at the University of Illinois College of Law, said such work marks part of a growing movement that reflects how society, and the courts, work.
“I don’t think there’s any doubt that many, many, many jurisdictions are going to adopt rules or practices or customs, whether it be formal rules or general customs, to use the pronouns a person goes by,” Thomas said. “The court system has a responsibility to be respectful to the litigants and lawyers who appear before the courts, and as a result, they will adopt – over time – rules or customs to address people by their proper pronouns.
“But … there will be holdouts, just as there are with anything else. There will be places that believe they don’t have to hold to these types of practices.”
Thomas noted that the National Center for State Courts, a prominent organization that communicates and compiles information about state courts, recently published a paper, known as an online toolkit, titled “Gender Inclusivity in the Courts: How to Treat Everyone with Fairness, Dignity and Impartiality.”
“That in itself is super significant, because they are the body that everyone kind of looks to for information about state courts,” Thomas said. “[In the publication], they make recommendations that courts should use ‘they’ and ‘them’ unless they know a person’s gender preferences. They also say they think the courts should add pronoun fields on standardized forms. I think the fact that they have done this and created this article or document that other courts can look to … is significant, because it will have [reached] pretty much any courts that are paying attention.”
In Illinois, any new court rule changes would build on one particularly significant rule change.
In 2022, the Code of Judicial Conduct for Illinois was amended in several ways, specifically to prohibit discrimination based on gender identity, and to prohibit a judge from being a member of “any organization that practices invidious discrimination.” Of note, the rule specifically exempts membership in religious organizations “as a lawful exercise of freedom of religion.”
At the same time, the state courts have revised their rules of professional conduct, which govern attorneys, to specifically forbid lawyers practicing in Illinois from violating any “federal, state or local statute or ordinance” such as the Illinois Human Rights Act, which “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…”
Those new rule changes followed the resolution of two significant Illinois court cases dealing with transgender discrimination.
In 2021, the Illinois Second District Appellate Court upheld the findings of Illinois’ Human Rights Commission, which found craft retail giant Hobby Lobby had violated the state’s Human Rights Act by allegedly forbidding transgender employee Meggan Sommerville from using the women’s restroom.
Also in 2021, Sheryl Ring, a transgender lawyer from suburban McHenry, secured a court declaration that attorney ethics rules in Illinois do not allow discrimination based on gender identity.
From that declaration, the state rewrote the professional conduct rules.
Those rule changes are notable for two reasons, said Illinois University College of Law Professor Lena Shapiro.
First, Shapiro noted the new rules specifically reference and invoke the Illinois Human Rights Act in court conduct rules for the first time.
But secondly, she said, notably, no one has yet challenged that declaration or the rule changes that resulted from it.
“As far as I’m aware, there hasn’t been a lawsuit challenging this declaration on First Amendment grounds,” Shapiro said. “This declaration with respect to [the] Sheryl [Ring case] looks like the courts will head in a direction where an individual’s correct pronouns are expected.”
Balancing rights?
Down the road, there could be a challenge to the Illinois ethics rule prohibiting discrimination based on someone’s gender identity, Shapiro said.
“A private attorney could challenge that on First Amendment grounds and argue that their religious beliefs aren’t consistent with that view and challenge the declaration that it’s discriminatory that way,” she said.
There are several recent cases that may be relevant to future First Amendment proceedings regarding personal pronouns and gender identity, Shapiro said.
But she said their scope may be narrow.
In 2020, in United States v. Varner, the U.S. Fifth Circuit Court of Appeals upheld that courts cannot compel the use of preferred pronouns. This came after Norman Varner, a convicted federal prisoner, requested the name on the judgment of committal be changed to reflect Kathrine Nicole Jett.
“First, no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity,” the court wrote. “Federal courts sometimes choose to refer to gender-dysphoric parties by their preferred pronouns. On this issue, our court has gone both ways.”
Meriwether, an evangelical Christian, had been in the practice of calling on students using Mr. and Ms. followed by their last name. When a student who identified as female requested Meriwether use female pronouns, he denied the request, instead offering to call the student by last name only.
Meriwether received a written warning from the university for violating its nondiscrimination policies, with threats of further corrective actions if he did not address the student by preferred pronouns. In return, he sued the university in 2018, claiming his First Amendment rights to free speech and free exercise of religion – among other rights – were violated.
“Initially, a federal judge dismissed the case, but we appealed the decision to the U.S. Court of Appeals for the Sixth Circuit,” wrote the Alliance Defending Freedom, who filed the suit on Meriwether’s behalf. “In March 2021, the Sixth Circuit ruled in our favor, upholding Dr. Meriwether’s First Amendment rights.
The Sixth Circuit explained that if ‘professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as ‘comrades.’ That cannot be.’”
Shapiro noted these types of cases are not commonplace, at this point.
“I think it’s confusing because it’s so new,” Shapiro said of pronoun usage and First Amendment strategies used to defend those who have objections to using them.
“And when it has been tested by the courts, it’s in a very specific setting. Most of the cases are teachers challenging the rules or public policies at a public university. A private [university] can do whatever they like because the First Amendment doesn’t apply to them. But I don’t think we’ve seen, other than the Fifth Circuit Varner case … about whether a court can compel [pronoun usage] to the litigants or attorneys. We’re sort of in a wait-and-see situation.”
Shapiro said there is a pending U.S. Supreme Court case Groff v. DeJoy, that also could be relevant to a religious accommodation argument.
Gerald Groff, a Christian who observes Sunday Sabbath, sued the United States Postal Service for failure to accommodate his religion, after he was forced to resign because his request to not work Sundays was not consistently met.
While not a First Amendment case, “the question they’re facing is inconvenience to coworkers under Title VII [of the Civil Rights Act of 1964],” said Shapiro, which requires employers to accommodate their employees’ religious beliefs and practices unless doing so would constitute an “undue hardship on the conduct of the employer’s business.”
The Supreme Court heard oral argument April 18 in the Groff case. A decision is expected by the end of June.
Shapiro said it remains unclear how courts may ultimately balance the rights of people who don’t wish to use prescribed pronouns, against “a person’s right to have proper pronouns recognized.”
“I think a lot of it is weighing the court’s right to run an efficient and respectful courtroom versus what a plaintiff might claim is their religious right or religious belief and accommodating that,” Shapiro said.
“It’ll depend on the facts of each individual case.”