By Kim Ahrens
After climbing the courthouse steps, litigants, jurors and the public look to the behavior of judges and attorneys to understand courtroom decorum. The use of inclusive language in the courtroom conveys the message that all people, regardless of orientation, gender identity or gender expression, will be treated with dignity and respect.
Beyond that, incorporating gender inclusive language into the courtroom shows compliance with the recent changes to the ethical and professional rules that govern the conduct of attorneys and judges. In October 2018, the Supreme Court revised the Judicial Code of Ethics1 to include gender identity and gender expression as protected characteristics that cannot be used to harass, discriminate against or harbor bias against any person. The very next month the California State Bar released its amended ethical rules for attorneys with a similar revision.
What is gender-inclusive language?
Gender-inclusive language is language that does not conflate the concepts of gender identity and gender expression or adopt gender-specific stereotypes. The starting point is realizing gender identity and gender expression are two separate concepts. “Gender identity” refers to a person’s internal sense of being male, female, a combination, or neither male nor female. On the other hand, “gender expression” is the way people communicate their gender identity to the outside world. Examples of gender expression include the pronouns one prefers, clothing, appearance and demeanor. Someone who expresses their gender by a stereotypically female appearance does not necessarily identify as female and may not use she/her/hers pronouns.
How to Use Gender-Inclusive Language in the Courtroom
- Attorneys can volunteer their preferred pronoun during appearances.
- Courts can list the preferred pronouns of judges on signage in courthouses and courtrooms.
- Judges and attorneys can state their preferred pronouns during jury introductions.
- Use the name of the person or gender-neutral words such as, “folks,” “guests,” “jurors” and “counsel.”
- Eliminate the use of terms and phrases that are gender-specific such as “ladies and gentlemen of the jury,” “sir” and “ma’am.”
- Realize a person’s preferred pronouns may change.
Gender-inclusive language enhances public trust, combats unconscious prejudice that can harm transgender and nonbinary people, and highlights the commitment of officers of the court to prohibit discrimination. The courtroom can be a fast-paced environment where judges, attorneys and jurors are expected to make important decisions with limited information. Because implicit biases are shortcuts to make quick decisions, it is our responsibility to institute ways to overcome those assumptions.
Substituting gender-inclusive language avoids misgendering people in the courtroom. “While most people do not intend to misgender, they also don’t think about the ramification of it,” noted Kathie Moehlig, Executive Director of TransFamily Support Services. “By misgendering or using a legal name rather than the chosen name, you could unintentionally ‘out’ a transgender person to others in the courtroom. This could subject them to harassment, discrimination and even physical assault from others that overhear this.”
Kim Ahrens (Pronouns: she/her/hers) is a director of Lawyers Club of San Diego and owner of Ahrens Law, APC where she represents victims of harassment, discrimination and wrongful termination.