Michigan Supreme Court’s Mx-Order

It would be fair to say that no one, even a judge, would take issue with a woman attorney using the salutation “Ms.” It’s not because a state Supreme Court ordered it, but because it has evolved into standard use. And, indeed, there is good reason for that happening, since the marital status of a woman is irrelevant in most contexts. But when a court has to order it, it means that it’s not standard and the court has compelled the introduction of a politicized non-standard usage into its legal proceedings.

That is what the Michigan Supreme Court has done.

Parties and attorneys may also include Ms., Mr., or Mx. as a preferred form of address and one of the following personal pronouns in the name section of the caption: he/him/his,  she/her/hers, or they/them/theirs. Courts must use the individual’s name, the designated salutation or personal pronouns, or other respectful means that is 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.

There are ways around the order. A judge can use the party’s or lawyer’s name alone, without salutation and without pronoun reference in his or her speech or writing. It will be awkward, perhaps confusing, perhaps ungrammatical and tedious, but that’s the only means by which a judge can avoid the confusion of using the plural pronouns for a single individual, or calling a lawyer “counselor” rather than Mx. so-and-so.

Does it matter? It matters enough for the court to issue an order requiring it. The concurring opinions read much like a sophomore grievance studies major manufacturing lame rationalizations for why this is merely respectful evolution rather than supplication to childish control mechanisms designed to coerce others to use their hip lexicon upon demand.

The first objection is that the use of the pronoun “they” for a nonbinary individual is grammatically confusing when referring to one person. Admittedly, this is a societal shift, but it is not one without history. As I previously noted in People v Gobrick, 510 Mich 1029, 1029 (2022) (WELCH, J., concurring), “lexicographers and the authors of English style guides have long changed practices to reflect the evolution of the English lexicon.” While a shift may require more intentionality (and a bit of practice) for generations that grew up learning one language rule, the next generation shifts quickly and with ease. In fact, society has used “they” as a singular pronoun since at least the 1300s, Merriam-Webster.com Dictionary, Singular ‘They’ <https://www.merriamwebster.com/wordplay/singular-nonbinary-they> (accessed September 1, 2023) [https://perma.cc/AE6L-FX2A], and only shifted to the masculine “he” preference more recently.

One the one hand, when you have to reach back to the 1300s to ground your claim, noting that the singular masculine “he” arose “more recently,” the argument that this is “evolution” ignores that “he” was evolution before, and evolution that has, over the intervening 900 years, become the standard.

It is also worth noting that while the third-person pronoun “they” can refer either to one person or to a group of people, the human brain has the remarkable ability to understand the difference quickly. The second-person pronoun “you” likewise can refer to one person or many people, something that was also discussed in Professor Garner’s National Review article. And yet writers—and their readers—skillfully navigate that distinction through context and without controversy. You can tell the difference if I am addressing you, the reader, or you, the public. While it may take some additional time for some to adjust to the change, society has navigated grammatical shifts many times through the centuries.

This sanguine understanding of the human brain notwithstanding, it also has the remarkable ability to confuse things, to get things wrong, which accounts for the reason we have courts to begin with, and appellate courts for when the human brain of lower court judges errs.

But these efforts at excuses, at rationalizations, are for a greater good, to show “respect” for litigants.

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. A primary goal of this change is to ensure that the judiciary operates in a manner that is objectively respectful of the individual identity and personal pronouns of the members of the public that we serve, regardless of the subjective viewpoints of individuals working within the court system.

Respect is good. Who doesn’t want respect? But if “our vocabulary also evolves,” then why issue an order compelling those who are similarly deserving of respect to adhere to the demands of the few to require the many to reject the vocabulary that society has adopted, that has truly evolved, for their personal peccadilloes which must heretofore emit from the mouths and fingers of others?

It may yet turn out that the use of peculiar personal pronouns, even beyond the singular plural of they/them/their may become the standard. It may well be that the salutation Mx. will become as accepted as Ms. But if so, then it won’t require an order by the Michigan Supreme Court picking the extreme progressive side in this controversial and contestable issue. It will happen of its own accord. Until then, pretending its the new normal is merely political prejudice masquerading as respectfulness. So ordered.

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