Freedom of Pronouns
GCLS launches campaign for free speech in the courtroom
Throughout the US, some judges are waging war on sex-based language. Thanks to their orders and rules, a prosecutor in California must refer to an alleged rapist as “she,” Michigan judges must pretend male sex offenders are women if they say they are, and lawyers in Colorado are encouraged to snitch on each other for failing to use a preferred pronoun.
When judges censor sex-based language, they deprive parties of a fair hearing, impartial justice, and free speech. These constitutional rights should never be compromised in the name of manners or social trends.
The Gender-Critical Law Society calls on the courts to allow freedom of pronouns in litigation. We have launched a campaign to explain the issue to judges.
In August, GCLS sent a letter and legal memo to the Supreme Judicial Court of Massachusetts. We asked the seven justices to bar pronoun censorship throughout the commonwealth. While Massachusetts is a Democratic stronghold, it’s also a hotbed of gender-critical activism. The state courts there have not systematically banned sex-based language. We’d like them to take the lead in declaring freedom of pronouns.
The lead signatories for GCLS were Hon. Elspeth Cypher, who is a retired justice of the SJC, and Glenna Goldis, who practiced law in Massachusetts from 2010 to 2015.
Democrats for an Informed Approach for Gender (DIAG), LGB Courage Coalition, and Women’s Liberation Front (WoLF) joined GCLS as signatories because they want their Massachusetts members to be able to speak freely in court.
You can download the full letter, including the legal memo, here.
The legal memo is pasted below without the footnotes.
We hope to send locally-tailored bulletins to judges throughout the US. If you are an American lawyer who would like to lead an effort where you practice, please contact us at GClawyersUSA@gmail.com.
If you have experienced trans-inspired censorship at court, whether as a litigant, lawyer, witness, juror, or something else, let us know at GClawyersUSA@gmail.com.
American lawyers and law students: join GCLS!
Pronoun Use in the Courtroom
This memorandum uses sex-based pronouns.
Why Pronouns Cause Controversy
Those who hold strong opinions about pronouns usually have strong opinions about sex: binary or spectrum?
Evolutionary biologist Carole Hooven argued for the binary this year in the Boston Globe:
There are two and only two sexes. Sex is immutable in humans and other mammals, and it is defined by gamete size.
Everyone is either male or female, including those with disorders of sex development:
The definition [of female] only requires that an individual has traveled some distance down a developmental pathway to create a reproductive system that has the potential (or function) to produce large (rather than small) gametes.
This model traces back to Charles Darwin. For decades it has been challenged by doctors who specialize in changing patients’ sex traits. (Today the practice is often called gender-affirming care, or GAC.) Harry Benjamin, an endocrinologist, published the argument in 1966 as The Transsexual Phenomenon. To him, there were “various kinds of sex that can be identified and separated, in spite of overlapping and interaction:”
Instead of the conventional two sexes with their anatomical differences, there may be up to ten or more separate concepts and manifestations of sex and each could be of vital importance to the individual. Here are some of the kinds of sex I have in mind: chromosomal, genetic, anatomical, legal, gonadal, germinal, endocrine (hormonal), psychological and - also - the social sex, usually based on the sex of rearing.
Today’s GAC providers adopt this model. One such endocrinologist testified this year:
Sex is comprised of several components. This includes, among others, internal reproductive organs, external genitalia, chromosomes, hormones, gender identity, and secondary sex characteristics.
Hooven, the biologist, responds that this standpoint confuses sex with sex traits:
[V]ariation in characteristics that are associated with sex does not constitute evidence for additional sexes. Nor does it mean that sex itself is somehow on a spectrum.
What it instead shows is that sex-associated traits do exist on a spectrum.
As the spectrum-style challenges have gained traction in recent years, some defenders of the binary – and skeptics of GAC – have come to see identity-based pronouns as an intolerable concession. This camp is diverse:
Gay activists argue GAC is a form of conversion therapy. Gender-nonconforming children, who are likely to be gay when they grow up, are targeted by GAC providers. By changing their appearance to mimic that of the opposite sex, they are “converted” to appear straight.
Detransitioners believe GAC doctors made a grave error by treating them as though their sex were changeable.
Radical feminists believe that material differences between women and men’s bodies call for sex-segregated prisons, sports, and intimate spaces. They reject the view that being a woman depends on “feeling” like one or preferring clothing that society designates as feminine.
Adherents to various religions believe that sex is endowed by a higher power and people should not try to change their sex traits or deny their sex.
President Donald Trump declared binary sex to be the official policy of the US government.
Defenders of the spectrum model typically use identity-based pronouns. They include:
Democratic officials
“LGBTQ” organizations
People who identify as transgender and their advocates
GAC providers
Those who advocate for Benjamin’s spectrum model of sex often profess a belief in “gender identity,” which one psychiatrist defines as a person’s “transcendent sense of gender.” Massachusetts law uses the terms “gender identity” and “gender-related identity” without defining “gender.” Neither the US Supreme Court, the US Court of Appeals for the First Circuit, nor the Supreme Judicial Court of Massachusetts have defined the term “gender identity,” though Massachusetts state and federal courts have issued decisions using gender identity language and identity-based pronouns. The Fourth Circuit defines gender as a person’s “deeply felt, inherent sense of their gender[.]” It does not define gender.
Binary supporters question whether gender identity has any meaning, noting its opacity, circularity, and subjectivity. Some of their adversaries agree with them that “gender identity” is unhelpful to understanding transgender identity.
Against this cultural backdrop, the Sixth Circuit has found that “pronouns carry a message.” Compelling use of identity-based pronouns forces speakers to “communicate a message: People can have a gender identity inconsistent with their sex ...”
How Pronouns Cause Controversy
In California, a convicted felon is on trial for raping two female inmates when serving his time in a women’s prison. The court has ordered the district attorney to refer to him by female pronouns and has not yet ruled on whether witnesses (including those who say the defendant raped them) must do the same.
The Michigan Supreme Court banned judges in that state from using sex-based pronouns in 2023. Transgender rights advocates demanded the rule after an appeals court judge refused to refer to a man convicted of child sex abuse by the pronouns they/them.
In the US District Court for the District of Colorado, six judges have adopted a “decorum” standard that invites counsel, litigants, and witnesses to report to chambers if someone involved in their matter fails to use their preferred pronouns. It states that all parties “should … [r]efer to all other persons by their … applicable pronouns.” In February, an athlete suing her university and others moved for the judge to rescind the standard and recuse himself. The judge denied both motions, noting that the standard did not ban sex-based pronouns and he had not penalized plaintiffs’ counsel for using them.
Last year the Colorado legislature considered a bill to let convicted felons change their name if they claimed their reason for doing so was to express a gender identity. Members of the public – a woman representing Rocky Mountain Women’s Network and a man from Gays Against Groomers – testified they were concerned about dangerous people exploiting the law to hide their pasts. The chairs presiding at two hearings cut off the testimony of these concerned members of the public because they referred to men by male pronouns and their legal names. The censored speakers have now sued, citing their rights under the First Amendment of the US Constitution.
Here in Massachusetts, a public middle school in Middleborough censored a boy who rejected its teaching that there are “unlimited genders” by wearing a shirt that read “there are only 2 genders.” His stand drew supporters and counter-protestors. The First Circuit ruled against the boy and the Supreme Court denied his petition for certiorari.
Because all courtroom censorship of pronouns that we know of concerns sex-based pronouns, we will focus on that form of speech regulation.
Pronoun Restrictions Indicate Bias
Litigants are entitled to procedural due process. See U.S. Const. amend. V; Mass. Const. art. 10.
“[D]ue process requires a neutral and detached judge.” Concrete Pipe & Prods. of California, Inc. v. Constr. Laborers Pension Tr. for S. California, 508 U.S. 602, 617 (1993) (cleaned up). It may call for recusal even where the judge has “no actual bias” because “justice … must satisfy the appearance of justice.” Id. at 618.
To that end, Massachusetts’ Code of Judicial Conduct Rule 2.2 directs judges to “perform all duties of judicial office fairly and impartially.” Comment 1 explains they “must be objective and open-minded.” Rule 1.2 cautions judges against creating the “appearance of impropriety,” which means “conduct [that] would create in reasonable minds a perception that the judge …engaged in … conduct that reflects adversely on the judge’s … impartiality …” Id., cmt 5.
Banning parties, witnesses, and counsel from using sex-based pronouns creates the appearance of bias. If sex is at issue in the case, it indicates that the judge embraces the “spectrum” view and perhaps believes in some form of “gender identity.” See Interest of CG, 976 NW 2d 318, 347 (Wisc. 2022) (Hagedorn, J., concurring). The Fifth Circuit has observed:
In cases like these, a court may have the most benign motives in honoring a party’s request to be addressed with pronouns matching his “deeply felt, inherent sense of [his] gender.” Edmo v. Corizon, Inc., 935 F.3d 757, 768 (9th Cir. 2019) (cleaned up). Yet in doing so, the court may unintentionally convey its tacit approval of the litigant’s underlying legal position.
US v. Varner, 948 F. 3d 250, 256 (5th Cir. 2020).
Even if the case does not concern sex, censoring one person’s pronoun usage could indicate a bias against that person. The Colorado judges, for example, classify pronoun use as a matter of “decorum,” implying that those who use sex-based pronouns are crude.
Censoring pronoun use can also convey that a judge has concern for the deeply-felt convictions of one person involved in the matter (perhaps one who identifies as transgender or nonbinary) but rates the principled views of another person (who might be a radical feminist, detransitioner, or Catholic) as unimportant or even offensive.
Pronoun Restrictions Interfere with the Right to Be Heard
Due process entails a right to be heard. Mathews v Eldridge, 424 U.S. 319, 332 (1976). The Commonwealth recognizes that right in part through CJC Rule 2.6(A):
A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge may make reasonable efforts, consistent with the law, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.
So the judge’s role is to make it easier for parties to speak. But censoring sex-based pronouns makes speaking more difficult. It frustrates parties’ ability to express themselves if they are accustomed to using sex-based pronouns or if they instinctively see a particular person as male or female, despite the person’s identity.
This concern also implicates bias. By handicapping users of sex-based pronouns, the judge might be viewed as trying to impede the party’s legal argument.
Pronoun Restrictions Interfere with Credibility Assessments
Fact-finders must assess witnesses’ credibility. They do so in part by observing the speaker’s non-verbal cues. “[V]ariations in demeanor and tone of voice … bear so heavily on the listener’s understanding of and belief in what is said.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985).
An increased “cognitive load” on witnesses as they testify might “be reflected in [their] demeanor.” Susan A. Bandes, Neal Feigenson, Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom, 68 Buff. L. Rev. 1275, 1296–97 (2020), cited by Vazquez Diaz v. Commonwealth, 487 Mass. 336 (2021) (Kafker, J., concurring). Frustrations in listening to testimony can cause “negative feelings” in the fact-finder that they “misattribute” to the witness, leading them to “evaluate him less favorably.” Bandes at 1302.
Pronouns come up constantly in natural speech. A witness trying to avoid them or substitute permissible options for instinctive ones might stutter, hesitate, or fidget in ways that appear shifty or annoy the listener – even though their testimony is true and accurate. A party might argue that this blight on witness testimony impaired their right to a fair hearing.
Pronoun Restrictions Are Unenforceable
If a judge orders litigants to avoid sex-based pronouns and they use them anyway, the judge will be placed in an awkward position. Their power to enforce such orders is through the contempt power, which only covers “disruption” – not breaches of decorum. “Trial courts no doubt must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” Brown v. United States, 356 U.S. 148, 153 (1958).
Mass. R. Crim. P. dictates a summary process when “necessary to maintain order in the courtroom” (Rule 43) and offers an alternative procedure for contemptuous conduct that does not meet the requirements for summary process (Rule 44).
The nature of contempt is broadly conceived, but whatever it is, it must have a disruptive effect on the administration of justice. “Contempt may … consist of an objectionable manner, speech, attitude, conduct, and tone of voice in the court room.” Albano v. Com., 315 Mass. 531, 535 (1944). Where an attorney threatened his opposing counsel that he would “get discovery up the ass,” the Appeals Court overruled a finding of contempt because “there is no indication from the record or the judge that it threatened or actually thrust the court into disorder or was violative of a previous warning.” Com. v. Diamond, 46 Mass. App. Ct. 103, 105–06 (1999). A drunk litigant giving the finger to her allegedly abusive ex-boyfriend in the courtroom was not sanctionable because there was “nothing in the judge’s findings or in the record that demonstrates that as a result of the gesture, summary punishment was necessary to maintain or restore order in the courtroom.” Com. v. Contach, 47 Mass. App. Ct. 247, 251 (1999).
Courts in other jurisdictions have found parties do not have a right to be referred to by preferred pronouns. “[N]o authority supports the proposition that [judges] may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity.” US v. Varner, 948 F. 3d 250, 254-55 (5th Cir. 2020) (citation omitted). See also United States v. Thomason, 991 F.3d 910, 915 (8th Cir. 2021) (noting the defendant cited no authority for claim that “courts must refer to defendants by their preferred pronouns”).
Certain Sex-based Pronoun Restrictions Violate the Free Speech Clause
Parties and their counsel have a free speech right to use sex-based pronouns under the First Amendment where sex is germane to the case. They and witnesses may also have a general free-speech right to use them.
Legal arguments presented to courts are protected speech. In striking down a statute that limited the arguments that attorneys could make if they were funded by the federal Legal Services Corporation, the Supreme Court held:
By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power.
The Court went on to quote the press-freedom ruling New York Times Co. v. Sullivan: “It is fundamental that the First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” Velazquez at 548. Certainly, the government could not ban sex-based pronouns in the media. And so it cannot ban them in legal argument.
Whether sex-based pronouns are protected speech in court proceedings more broadly, where sex is not at issue, is an unsettled question. The Supreme Court has held that lawyers’ speech rights are “circumscribed” in the courtroom – but not nonexistent. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071 (1991). In considering an attorney sanctioned for aggressively challenging a judge’s impartiality, the First Circuit declared that “no easy bright line can be drawn to measure when an attorney has gone too far [in pressing his First Amendment rights], but ‘[t]rial courts ... must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.’” United States v. Cooper, 872 F.2d 1, 3 (1st Cir. 1989), quoting Brown, supra. It found for the attorney.
In considering a challenge to a judge’s ban on lawyers wearing “political buttons,” the First Circuit pointed out that “a courtroom is a nonpublic forum.” Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997). But that did not end the First Amendment analysis. The court went on to explain that the judge’s “responsibilities include[] the right (and, indeed, the duty) to limit, to the extent practicable, the appearance of favoritism in judicial proceedings, and particularly, the appearance of political partiality.” Id. at 26. It abrogated the right of speech but only to accommodate another constitutional value, due process.
Other circuits recognize a right not to engage in symbolic speech in the courtroom. See United States v. Snider, 502 F.2d 645, 659–60 (4th Cir. 1974) (court could not force litigant to rise ceremonially at start of court session); Kaplan v. Hess, 694 F.2d 847 (D.C. Cir. 1982) (claim was adequately pled against rising requirement under free exercise clause). As discussed above, pronoun choices carry symbolic weight.
Pronoun Restrictions Defy the Tenets of Free Speech Jurisprudence
In considering the novel question of whether parties, lawyers, and witnesses are entitled to use sex-based pronouns in court, judges should consider that bans on this practice exemplify all the most reviled forms of speech restriction.
First, the pronoun debate is a sensitive political subject, which means it occupies the “‘highest rung of the hierarchy of First Amendment values and merits ‘special protection.’” See Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 585 U.S. 878, 913 (2018) (quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).
Second, pronoun restrictions discriminate by viewpoint – a type of censorship considered “egregious:”
When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is even more blatant.
Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.
Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995) (citations omitted).
Third, pronoun restrictions seek to prevent offense – an “idea [that] strikes at the heart of the First Amendment.” See Matal v. Tam, 582 U.S. 218, 246 (2017) (overturning a ban on racially insensitive trademarks). Even public schools are limited in how they address offensive speech when it concerns a public controversy. The Eighth Circuit allowed a free speech challenge to proceed against a policy requiring students to “respect a student’s gender identity:”
A school district cannot avoid the strictures of the First Amendment simply by defining certain speech as “bullying” or “harassment.”
Parents Defending Educ. v. Linn Mar Cmty. School Dist., 83 F.4th 658, 667
See also Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021), Vlaming v. West Point School Bd., 302 Va. 504 (2023) (under Virginia constitution). But see L.M. v. Town of Middleborough, 103 F.4th 854 (1st Cir. 2024), cert. denied, 605 U.S. __ (2025) (upholding censorship where plaintiff-student did not dispute his message about “gender” impacted classmates’ mental health).
Finally, where the parties must repeatedly refer to someone who denies his or her sex, a ban on using sex-based pronouns de facto forces them to use alternatives. If they accede to using pronouns they consider wrong, then the judge has compelled them “to mouth support for views they find objectionable” which “in most contexts … would be universally condemned.” Janus, 585 U.S. at 892. “[A] law commanding involuntary affirmation of objected-to beliefs would require even more immediate and urgent grounds than a law demanding silence.” Id. at 893 (cleaned up). Indeed, addressing forced flag salutes, Justice Robert Jackson went so far as to declare “no official” could wield such power:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943).
The Supreme Court has not considered whether judges may dictate pronoun usage. But it has considered whether government officials may welcome one philosophical idea while shutting down its opposite; whether they may ban speech they deem rude; and whether they may order Americans to pretend to believe orthodoxy. The answer in each case is no.
Using Sex-Based Pronouns Is Not Harassment
Massachusetts judges and lawyers are barred from “harassment” of others based on their “gender identity.” It is not clear what harassment means. When a similar rule was challenged in Connecticut, its defenders could not say at oral argument whether it applied to sex-based pronoun usage. See Cerame v. Slack, 123 F.4th 72, 83 (2d Cir. 2024).
Whatever harassment might be, it is not a constitutional value. Judges must subordinate it to the due process and free speech concerns described above.
To the extent that courtesy is a concern, we ask that it be extended to those who adhere to a biology-based definition of sex. Too often those on the side of a “sex spectrum” are allowed to define those who disagree with them. A widely-cited law review article on the subject of courtroom pronoun use illustrates how these advocates demonize those with an opposing viewpoint:
[A]s this Article has shown, under scrutiny the justifications typically offered for [using sex-based pronouns] are ultimately unsustainable. We are left, then, with the conclusion that these designations are done simply to insult, disrespect, and antagonize.
Chan Tov McNamarah, Misgendering as Misconduct, 68 UCLA L. Rev. Disc. 40, 71 (2020).
In fact the article straw-mans its adversary, never mentioning radical feminists, disillusioned gender patients, or gays concerned about the healthcare industry medicalizing nonconformity. For all its “scrutiny” of gender-critical thought, the article somehow never gazes on the term “gender-critical.”
Opponents of the sex binary hold themselves out to judges as neutral experts on transgender identity. See, e.g., Lambda Legal, Moving Beyond Bias: How To Ensure Access to Justice for LGBT People (2018) (training curriculum administered to judges by organization dedicated to “LGBT” rights); Judicial Education Program at the Williams Institute (“LGBT” advocacy center). They are better understood as partisans in a debate over sex. They sometimes seek to impose their view of sex on the courts by characterizing opposing views as harassment.
Courts Should Clarify A Pronoun’s Meaning When Appropriate
In Massachusetts in 2025, a pronoun might signify a referent’s sex or identity. One cannot be sure unless the speaker explains. To maintain a clear record of proceedings, we suggest that in cases where sex is relevant, judges ask speakers to state (1) why they use a particular pronoun and (2) the meaning of the pronoun, if it appears ambiguous.
It is customary for judges to assume the role of maintaining a clear record of proceedings. Some statutes actually require it. See United States v. Rivera-Rosario, 300 F.3d 1, 7 (1st Cir. 2002) (Jones Act requires judges of the District of Puerto Rico to conduct business in English); United States v. Nolan, 910 F.2d 1553, 1560 (7th Cir. 1990) (judges responsible for complying with Court Reporter Act); United States v. Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985) (same); United States v. Upshaw, 448 F.2d 1218, 1224 n. 6 (5th Cir.1971) (same); Edwards v. United States, 374 F.2d 24, 26 n. 2 (10th Cir.1967) (same). See also ABA Standards for Criminal Justice: Special Functions of the Trial Judge, std. 6-1.7 (judge’s responsibility to ensure that the reporter makes a true, complete, and accurate record of all proceedings).
We ask judges to extend this consideration to proceedings where sex is material and could be ambiguous in the record.
Proposed Rule
We propose that the SJC promulgate the following rule.
Supreme Judicial Court Rule 5: Ensuring free expression and clarity regarding the meaning of pronouns.
Section 1
In the course of legal proceedings, no judge shall prohibit or discourage any party, attorney, or witness from using sex-based language, including pronouns or descriptors.
Section 2
During legal proceedings that are recorded or transcribed, where an individual’s sex is material to the proceeding, judges shall seek to minimize ambiguity as to that individual’s sex.
To that end, judges shall, when necessary, ask speakers to state (1) why they use a particular pronoun and (2) the meaning of the pronoun, if it appears ambiguous.
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