The American Bar Association knew what it wanted to accomplish when it passed model rule 8.4(g), but were the arguments against it exaggerated, hysterical, too extreme? The question is up for debate in Arizona, which is considering amending its rules to include the new model rule.
In 2017, Lambda Legal assisted a transgender woman with addressing discriminatory treatment she experienced when in a Georgia municipal court regarding a traffic ticket. The prosecuting attorney in the case repeatedly referred to her as “he” and “him” when addressing or speaking about her. Prior to the hearing, he took her aside in a small room with four other people who were not identified to her to discuss the case. He then asked her whether she’d “had the full surgery,” an inquiry about genital surgery. This experience was humiliating and dangerous for her.
Violence directed at LGBTQ people has seen an increase in recent years. In 2016, among LGBTQ hate-motivated homicide victims, transgender women of color made up the majority of victims in the U.S. The attorney in this case purposefully disclosed the woman’s transgender status to everyone within earshot and refused to acknowledge a core aspect of her identity. The judge presiding over this case did not take steps to address the misgendering and disrespectful treatment. Lambda Legal brought this matter directly to the attention of the judge, who responded with an acknowledgment of her responsibilities and assurances that any future misgendering or other disrespectful treatment directed to transgender people in her courtroom would be promptly and appropriately addressed.
The degree of awfulness reflected by this conduct will be in inverse proportion to your wokeness, but few people find being prosecuted an unhumiliating and undangerous experience. It’s ironic that a prosecutor couldn’t be punished for playing hide the Brady or putting on a lying witness, but could be disbarred for using the wrong pronoun, but two wrongs don’t make a right. The accommodation of calling the defendant “she” is so petty that, even if you believe it silly, the prosecutor wouldn’t sprain anything by doing so.
But the question isn’t about politeness or wokeness, but attorney discipline.
Now if the rule were only aimed at restricting lawyer speech—especially government lawyer speech—in the courtroom, then it would certainly be constitutional as part of the court system’s power to control speech in the courtroom (which is necessarily constrained by all sorts of rules, whether of evidence or of professional responsibility). The same might extend to speech in the pretrial litigation process. (How the legal system should reconcile some people’s desire to be referred to using particular pronouns with some lawyers’ desire not to be compelled to say things that they think are factually false is a complicated question, but I think courts would rightly have considerable discretion in setting the rules there.)
But the rule is deliberately not limited to speech that is part of the legal process; indeed, many states have such rules that ban discrimination and harassment within that process, and the ABA expressly went beyond that. The rule expressly covers speech engaged in while “participating in bar association, business or social activities in connection with the practice of law,” and would thus cover Continuing Legal Education panels, political discussions over dinner at bar functions, and so on.
Don’t Schlossberg me, bro. Judge McConnell told a lawyer in Rhode Island not to use the word “hysterical” because it was sexist. The judge in the Lambda Legal example says she’ll be more woke going forward, presumably to admonish any prosecutor who uses the wrong pronoun. What would happen if he does is unclear. What could happen if the prosecutor, or any lawyer, responded that he disputes her sensibilities and plans to call any defendant with a penis “he,” and no one, ever, “xi,” is a mystery.
But what will happen when the woke infiltrate the Federalist Society shindig, secret recorder in their lapel, to ferret out the words and phrases that fail to comport with the rule? Can they express disagreement with gender fluidity if they use the plural pronoun for the singular?
Now I think that the ethical question of what pronouns to use for people who don’t fit within the usual clearly-male-“he” / clearly-female-“she” mold is a complicated one. My tentative personal inclination is to go along with people’s preferences as to “he” or “she,” but to balk at “they” and at more innovative pronouns; but I’m not sure about the right answer, and I think it’s worth discussing what it should be. As I said, the preferences of those who are being referred to surely count for something. But so do the preferences of those who are deciding which words to say, especially if they think certain words represent what they view as falsehoods (e.g., using “he” to refer to someone who the speaker thinks is not really male, under the speaker’s understanding of the meaning of “male”).
It’s understandable that Lambda Legal wants to have this tool at its disposal to go after lawyers who utter words that offend their sensibilities. That’s their mission and position, especially after the goal of gay marriage has been achieved. Now they’re into micromanaging word choice, and through it, wrongthink. Of course, it’s entirely possible to be tolerant of LGBTQ+ without adopting the linguistic indulgences as well, but for the “words are violence” crowd, they can’t shake it off.
But I don’t think this is something that the law, or the legally enforceable rules of a profession, should force on people, at least outside the courtroom and related aspects of the legal process. It certainly isn’t something that should be expressly extended to “social” activities, even those “in connection with the practice of law,” or to bar association panels or debates. Yet the logic of Lambda Legal’s comments suggests that, if 8.4 is adopted, that is exactly what could end up happening.
Eugene is fairly sanguine about what can be uttered in a courtroom. Me, less so, having spent hours trying to redact some pretty nasty language out of wiretaps. Even if your sensibilities tell you that what the prosecutor did in the Lambda Legal example is so very wrong that it justifies discipline, and if it had happened at the National Association of District Attorneys soiree, it should as well (because your sensibilities are right and pure and everyone else is wrong), the example just scratches the surface of where this can go.
Once scratched, there may be no limits of language, and the thoughts beneath the words, that can’t be prohibited. Tell that to your client when you’re trying to argue your way out of the taint of a wiretap where Xe says “faggot” and “nigga” a few thousand times. You know what’s more humiliating than a prosecutor using the wrong pronoun? Being sentenced.
*Paragraph break added for readability.