Courts Differ on Use of Gender Neutral Pronouns

the year. Many federal courts have referred to parties and other people who appear before them by the pronouns that conform to their gender identities, but remarkably, some courts have not. Joining me. As Holly Barker, Bloomberg Law Senior legal reporter, the new pronouns may be confusing to some people who aren't familiar with them, So just give us a little bit of background. For CIS gender individuals, I'm CIS genders. I was assigned female at birth, and I identify as

a woman. Gender pronouns like he or she. You know, it's something we don't really think about. But for people who are transgender and or non binary, in other words, if they have a gender identity that's different from the sex they were assigned at birth, pronouns do matter, and they might experience being miss gendered regularly, and it's important because it's demoralizing for people, and there's been research that

you know, it can have negative mental health consequences. So addressing people by the pronouns that are consistent with their gender identity is something that people need to do in light of this. Is there any new rule for federal

courts about the use of gender pronouns. No, there's emphatically no rule or law requiring courts or counsel to report to parties or other people who appear in court by the pronouns that conformed to their gender identities, at least not yet, so federal courts have been handling it differently. Tell us about what happened in the Eastern District of

Wisconsin in the lamb Risk case. So they're the attorneys for both parties and am using the pronouns days then and there to refer to the plane f Lamours, which was Lamous David preference, but the judge sort of basically

decided it was too much trouble. So specifically, the court dropped a footnote explaining that the court didn't intend any disrespect the lamours but and this is a quote, because the use of plural pronouns to refer to individuals and proper understandard rules of English grammar, and it's confusing to the reader. The courts will use the singular pronouns corresponding

to his biological sex here and when necessary. Meanwhile, both the Chicago Manual Style and the Associated Prest Style Book started recognizing singular use of day in certain circumstances in seventeen, and then in twenty nineteen Marion Webster added the definition of the singular day, and it was worth of the year. So the judges view that this is somehow grammatically incorrect or hasn't worked its way, and contemporary linguistics, it just

isn't right. Sort of the signal it send is that it doesn't matter, because you know, it might be a hosshole and it might be stilted, but it's certainly possible to omit gender pronouns altogether when you're writing a legal opinion, almost especially because there are all sorts of other terms

you can use, like plaintiffs. So it's sort of not making the effort to accommodate somebody's wishes in that regard is dismissive and I think sort of harmful for parties, But it doesn't seem like the judge in that case was trying to be unkind I agree. There was another case in the Sixth Circuit where the court producing to go out of its way to use a gender pronoun, in part because the Fifth Circuit has written opinions involving

transgendered parties and omitted pronouns altogether. But I think you know one of the reasons, and they're the court declined, despite a request from a party to use the gender pronoun that conforms with their gender identity, and instead of pronoun altogether, decided to use the male pronouns, which were the pronouns that had been assigned at birth to the party that wanted to be referred to using female pronouns only. And one of the reasons they decided was to avoid

the appearance of bias. And unless they were trying to appear biased, then the embedded assumption is that the sort of neutral thing we do in that situation is to use the pronoun that was assigned at birth, and it's not It's something that the Equal Employment Opportunity Commission is recognized as something that kin equal harassment, it's unintentionally and repeatedly, so, so I think rather than being this sort of malignant or intentionally harmful thing that judges are sometimes doing, I

think it's sort of a misunderstanding of how importunate it is not to sort of intentionally call someone by the wrong gender pronoun the misgender them. So the fifth Circuit is considered the most conservative circuit in the country, but there are judges on that circuit who are handling it correctly, and there are judges that are handling it incorrectly. In USB. Varner, which is the decision we've been talking about, Judge Dennis wroteed this stunt, and in it he used female pronouns

to discuss Warner, which was Warner's preference. So in that respect then it's deviated from the majority, which used male pronouns, and other judges like Judge Howe, for example, when he writes the opinions, he omits pronouns altogether just it almost seems to be a matter of course, there's not very

much consistency. Dennis seems to agree that it's important to call somebody by their preferred pronouns, who avoids the issue altogether and Smith and Duncan, who were the two of the three judges on the panel, and usb Barner, who joined in the majority, either misunderstands the premise over being mean, and I would assume it was the former. You refer to it as I think this is a good title. You refer to it as grammatical Switzerland, what Judge James

Howe does so. One of the Chicago manuals, the Styles General Rules, sort of provide strategies for writing around gender pronouns. Altogether. It's like repeating the noun if it's somebody's name, for example, um, or admitting the pronoun and it's not really necessary, and often pronouns sort of extraneous, and using an article instead of a pronoun so instead of his constitutional right, it's

the constitutional rights for example. Well, while I in my view it's preferable to just use the pronouns people ask you to, for for some reason, somebody's used that neutrality is necessary. There's a way to do it um, and it's certainly better than this gendering somebody. The bus Dot case is a landmark Supreme Court case where the Court haild that Title seven protects employees against discrimination because they're gay, or transgender. Did that decision have any influence on what's

hapening now in the courts with gender pronouns? Interesting that you asked that because Eric Corsich, who wrote the majority opinion, use female pronouns to refer to a transgender woman, the pronoun that this transgender woman wanted him to use. You know, again, there's no rule, and it wasn't, you know, something that the court said in any way that other courts needed to do, but just in terms of modeling, that's behavior that they modeled, and you would think that that might

influence lower courts. And the USB Varner was in January, so uh, Bostock was in I believe June until later in that year, and most of the decisions I've seen since then either omit pronouns altogether or use the party's

pronoun it's consistent with their gender identity. But still, you know, some courts don't, which takes us back to that Eastern District of Wisconsin decision where the judge basically said, you know, it's too much, too much trouble to use they in the singular to refer to this party despite their expression. So would you say the boss Stock decision did seem to influence most courts. That's really hard to say. Uh,

most courts, I do think honor of parties requests. But you know, we're still seeing instances where where it's not happening, like in the Eastern District of was Content case, which is you know, decided a little over a year after Bostock and where the courts declined to use the party's request pronouns. We're still seeing it after Bostock. The Equal

Employment Opportunity Commission released new guidance just explain that. So the agency commemorated the one Your Anniversary Boss Stok in June by releasing guid so so Boss Stock, just by way of a reminder held for the first time, the titles EVAN applies discrimination against homosexual and transgendered people. So they're you know, that being sort of a new principle.

There wasn't a ton of guidance out about it yet, So the e o C to address that in June reiterated, among other things, that unlawful harassment can include intentionally calling someone by the wrong pronoun And they weren't They're not referring to sort of accidental or unintentionally doing it. They're talking about repeated and an intentional mis gendering. So it's something that they've recognized and constitute harassment. Thanks for being

the Bloomberg Laws Show. Holly, that's Holly Barker, Bloomberg Laws Senior legal Reporter. President Joe Biden has selected Elizabeth pre Lagger to become the next Solicitor General of the United States. Free Lagger is a veteran appellate lawyer who has been Acting Solicitor General since January. Join me as Kimberly Strawberry Robinson Bloomberg Law Supreme Court reporter. So tell us about

the importance of the role of the Solicitor General. Well, sure, So the Solicitor General, although it's an office that really is sort of unknown outside of elite appellant circles, it's actually the number four position within the d o J. And so not only is it the federal government top lawyer at the Supreme Court, but it really oversees all of the federal appellate litigation and really determines which cases the federal government is going to appeal up to the

appellate courts and perhaps eventually to the Supreme Court. So it's a very powerful office. Uh, and certainly one that I'm surprised to see having not been filled for so long. Is this the longest that the solicitor general spot has been left open with an acting solicito general. Certainly, it's the longest in modern times and has really been unprecedented

in the last several decades. Listeners may remember that under the Ump administration there was some grumbling that it was taking that administration quite a long time to still the solicitor general spot as well, But even then we had a nominee in early March, and so not having a nominee until August is really quite interesting. And the solicitor General that position has to be confirmed by the Senate, that's right, This is one that has to be confirmed

by the Senate. So even though the White House announced its intention to have pre Lager be the nominee, we still don't have word on when her confirmation hearings might be. Although you know, the office is in pretty good hands until that time. There are a lot of career deputies there that have been there some since the seventies and nineties, so there's a lot of institutional knowledge. While we wait to see whether or not pre Lagger is going to

be confirmed. So tell us about Elizabeth pre Lagger. Sure, Well, she's a long time d o J attorney. She had previously been an assistant in the Solicitor General's office, and then I argued some cases in front of the U s. Supreme Corps. And then she was briefly detailed to the Mueller investigation investigating potential Russian interference in the twenty sixteen election. That's likely because she speaks fluent Russian. After that and before she went into the d O day she was

in private practice. But she is one of the few female attorneys who has argued regularly in front of the Supreme Court, and she's done so on behalf of the Biden administration a couple of times since taking on the acting SG role in in late January. And she clerk for Merrick Garland and also for the first female Solicitor General who is now a Supreme Court Justice, Elena Kagan. That's right, So she has a pretty impressive background with

guard to clerkships. Not only did she clerk for now Attorney General Merrick Garland, which I can't help but think helped her prospects of getting this little for their general. No, but She also clerked for two Supreme Court Justices, Ruth Vader Ginsburg and then Elena Kagan. And you mentioned that Elena Kagan was the first female Solicitor General and Elizabeth Prologer would be just the second. She seems to have a lot of experience, she seems top notch. Why was

there a delay in naming her as a nominee. Well, we've heard from sources, you know, former individuals but in the Solicitor General's office that there was some handling between the White House and the Department of Justice. As I mentioned, Plager but probably got some backing from Merrick Garland Um who has championed her career for a very long time. But the White House has really placed an emphasis on diversity,

both racially and with professional experience. And we've been hearing that the White House was looking for either an attorney of color to leave the office or for somebody with criminal defense background, and there's a lot of pressure on the White House to kind of reverse the traditional pipeline that we see in these high up d o J. Positions that really rely on prosecutors, and we really haven't seen it happen yet. So the delay in naming a nominee, as you write, a p is to have worked in

her favor. Well, that's right, because you know, as I said, she has been doing this job on an acting basis um for an unprecedented amount of time. We've seen her really take on some of the hardest jobs that a solicitor general has to do. That is taking over from a previous administration and deciding when the solicitor General's office

is going to change positions from a previous administration. As you can imagine, there were some differences in the way of thinking about certain cases between the Trump administration and the Biden administration, you know, and Elizabeth Prologer was at the front of deciding whether or not the federal government should you know, do a one eighty, or whether or not they should stick the course and maybe not take a hit to their institutional reputation. So she has less

senior federal government experience than prior solicitor generals. Does that really make a difference, Well, you know, I guess we'll have to see whether or not it's something that comes up in her confirmation hearing. You know, the solicitor General's office has often been used as a stepping stone to the Supreme Court. We've already mentioned Elena Kagan, but of course you know third Good Marshal was another really high profile Solicitor General who eventually got the nod to be

on the Supreme Court. I think this is something that's changing in the dynamic of the office. Going back to George Bush's Solita General Robert Bork, we actually saw him step down from the d C Circuit to take on the Solicitor general role of judge ship that's really considered to be on the second most important court of the country.

Um So, now we see, particularly with President Trump's nominee, that those kinds of credentials are not being required, and we'll see if that's something that continues with pur Lager and beyond. So, Kimberly, the White House had to make

a decision because of a law. Tell us about that law, right, So, this is a law that was intended to really prevent and runs around the sentence advice and consent role, where you know, presidents would just name someone an acting role and lead them there for years, perhaps you know, many years spanning their whole had been illustration. And so under this law, the d o J has only so long that it can have somebody work on an acting basis before you know, they need to have somebody up for nomination,

and that timeline runs out in November. Now, once Elizabeth Prologger is formally nominated and her nomination is sent to the Senate, that timeline will move beyond. But it hasn't really happened that the d o J has been coming up on a timeline like this. As we talked, this

has really been an unprecedented delay. Did Divide administration offer the job to California Supreme Court Justice Leandre Krueger, Well, that's something that we heard very early in the process, uh sometime in January that not only did the White House um offer her the nomination once, but twice and

she declined. You know that that's something you know that isn't out of the realm to think that someone would step down from a prestigious place like a justice on the California's Court, because as I mentioned, you know, this is a stepping stone to the Supreme Court, and Leander Krueger is one of the leading candidates, one of the few leading candidates UM for the next opening on the

Supreme Court. As we've talked about before, this Listener General's office has faced criticism for its lack of gender diversity. The Soldiery General's Office put forward sixty one minute argument in fifty eight cases compared with ten women. Are they working on gender diversity with prologer there? Now, that's something that you know, we've heard from the Biden administrations that

they do want to have more diversity. You know. Not only is the number from last term concerning, but it's even more concerning because it's really seen as a driver of the total imbalance between men and female attorneys arguing at the Supreme Court. That's really because the Soldier of General's Office participates in so many of these oral arguments.

They are in approximately two thirds of these cases. So if you have an Sg's office that isn't really well balanced and isn't diverse, you're not going to have you know, attorneys as a whole who are representative um of the country who are arguing at the court. There's also a problem with racial diversity as well, right, and that's probably even bigger are problem for the Solicitor General's Office than than the gender diversity and really diversity on so many

levels as a problem in the office. You know, beyond just racial and gender diversity. There really is just one kind of typical professional pipeline um you know that we see traditionally to the Solicitor General's office. That is, you know, a Supreme Court clerkship, a prestigious job in you know, an appellate shop in Washington, and then you know some kind of prosecutor rule or siding with the federal government.

And so that's something that Carlager is not going to offer a lot of diversity, and that the Biden administration will continue to be pressed on. This is not a job you know right out of law school. These are very experienced attorneys who are going for these jobs, that's right. These are typically people who have you know, several years um practicing in private practice that you know that's on

top of these prestigious clerkships. You know, Prai Lauger is certainly not out of bounds with having you know, clerks for Americ Garland and then two Supreme Court justices. So it's definitely not something in entry level position, but they're really sought out positions within the federal government that you know, attorneys generally stay in for about five years before you know, moving out and allowing others to step into that prestigious role.

And how big is the office? How many attorneys? Well, there's been some movement in the number of attorneys. There's approximately twenty to twenty three attorneys in the office, and those split between kind of temporary positions, these five year positions to career positions. I mentioned one of the deputies has been there since the nine seventies um and then

also balanced with some political appointees. So not only is the Solicitor general political pointee, but also their principal deputy, which is the role that Prelauter is serving them now. So we're getting closer, not quite there yet to the first Funday in October. Let's talk about some of the high profile cases, starting with the abortion case. Right this uh, you know, this next term that's coming up is really going to be quite a test for you know, the

Supreme Court. This abortion case is Dobbs versus Jackson Women's Health Organization, and it's a challenge to Mississippi's Gestational Age Act, which bans abortion after fifteen weeks. Now, the question formally presented to the justices here is about so called pre viability abortions. But the briefs from the party and from the supporting briefs from Amikus all really go after or Row versus Wade, and the right to have an abortion at all. Abortion remains one of the most contentious issues

in this country. Another contentious issue is Second Amendment rights. Tell us about that case, that's right the case. The Supreme Court will also take up this very contentious issue in New York State Rights Rifle versus and Sorry, the Supreme Court will also take up this issue in New

York State Rifle and Pistol Association versus Corelett. Now, this is a challenge just to New York's concealed carry permit process, and the question is really whether state legislatures can place limits um on a consumed carry permit or whether the Second Amendment uh limits what the state legislatures can do. And in particular, New York provides local authorities with quite a bit of disprestion when deciding whether or not to

grant these permits. And that is what in the individual tier challenging that that kind of dis Russian violates the Constitution. And you have several justices on the Supreme Court, conservative justices who have wanted to take up a Second Amendment

case because they haven't taken up one in about a decade. Right, we have seen kind of a minority of the conservative justices for a long time saying that, you know, there are questions that are left open, uh, since the Supreme Court really heard one of its landmark cases heller Um, deciding some Second Amendment issues, and that you know, federal lower federal courts don't really need guidance on these issues. But we've seen a majority of the justice saying that

they didn't want to tackle the issue. They've been really denying cases that deal with these same issues, uh, for almost a decade, And it wasn't until we saw, you know, Justice Barrett come into the picture that we saw one of these cases actually get granted at the Supreme Court. So with these two issues alone, it seems like next term is going to be a lot more controversial then

this term was. That's right. You know, if you look back at this last term, you kind of saw an effort by at least some of the justices to moderate some of the rulings to kind of not go as far as conservatives may have wanted them to go. But these cases are going to really be where the rubber meets the road. Are we going to see the conservative justices really moderate and kind of kind of uphold precedent, or are we going to see them go big on

these two very controversial issues. Now, the marathon bomber case that's coming before the Supreme Court, what's the issue there? Right? So that is a really interesting case because, uh, you know, it is about these capital sentences that Joe Harris or not of actually got for his participation in the marathon bombing, but it doesn't actually deal with his guilt or the sense. Instead, the justices are going to look at some technical issues related to jury selection in the case and evidence that

was used during the sentencing phase. But this is a really interesting case for the Solicitor General. Uh, you know, that being the topic that we started off with in that you know, the Biden administration or then candidate Biden really campaigned against the death penalty, and here we see them in this case just continuing the Trump administration's arguments that the death penalty should be reinstated and used. Here there are there are some couple of really interesting cases

involving state secrets, that's right, and this is one. Uh, you know, these are some cases that I was really surprised that there wasn't more of a push for the Biden administration to have a Senate confirmed Solicitor General um by the time that these cases were argued, because they

are so integral to the federal government litigation. But you know, these two cases deal with the state secrets privilege, and this is the idea that if the federal government is required to turn over certain information and litigations, that it

could be harmful to national defense. Now these cases really come up in the context of the War on Terror, but the United States has been in certain state privileges back since nine They've been used in cases you know as wide ranging as discriminations, things on wire tapping, as US citizens and evocatent. So it definitely has, you know, implications beyond the War on terror. It's always a pleasure

to have you on the show. Kimberly, that's Bloomberg Law Supreme Court Reporter Kimberly Strawbridge Robinson And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news Honor Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast slash Law. I'm June Brosso and you're listening to Bloomberg