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Misgendering as legal misconduct? A legal scholar weighs in on a recent Wyoming trend

A black bison on a transgender flag
Jeff Victor
Wyoming Public Media

The term "misgendering" means referring to someone by pronouns they don't identify with. It's a common social faux pas when it's done accidentally and considered rude when done on purpose. But what about when it's done in legal filings? One Cornell law professor, Chan Tov McNamarah, believes it should actually be considered professional misconduct on the part of the lawyer doing it. Wyoming Public Radio’s Jeff Victor spoke with McNamarah about their argument that misgendering ought to be considered misconduct.

Editor's note: This interview has been edited for clarity and length.

Jeff Victor: Lay out your main argument for me, why should we crack down on misgendering in legal filings?

Chan Tov McNamarah: So I think we should be opposed to misgendering generally. Now, if we look historically at how terms of address — that's titles, names, pronouns, honorifics and the like — have been used against various groups of people as they're seeking equal citizenship, we see a very stable pattern. So if we look back at the institution of enslavement, we see things like “unnaming” — where people were stripped of their names. And then after reconstruction, after emancipation, where African Americans were addressed with generic names, names that were not theirs. The symbolism, the expressive dimensions of that practice, was to show that African Americans were so demeaned that they could be addressed in any way, shape, or form and they'd have to respond. We see, moving into the 1970s, similar practices happening with women. Unlike male titles — with the one male title, ‘mister’ — women have a variety of titles that have historically symbolized their relationships with men. So in the 1970s, we see women, as part of the feminist movement, fighting for the right to choose a title of their own and a title that does not have anything to do with men whatsoever to assert their own autonomy over their identities.

I think that the issue we're seeing now with misgendering is just a modern replication of the practices that we've seen thus far. It should not be that the cost of participating in the legal system for gender minorities is a risk of harassment. That shouldn't be a cost for anyone.

JV: One of the reasons I was intrigued by your article is that here in Wyoming, we have seen a few lawsuits that have engaged in misgendering. One example is a federal lawsuit that wanted to remove a transgender woman from one of the University of Wyoming sororities. In that case, the plaintiffs were arguing that this transgender student doesn't belong in the sorority because she's not a real woman and the sorority is just for women. In a case like that, wouldn't using she/her be conceding the point on the part of the plaintiff?

CTM: So absolutely not. This is an argument that's made quite a bit, actually, but it doesn't hold water when we look at it. So there are quite a few courts, quite a few opinions — I believe it's in the hundreds at this point — where courts have referred to gender minority parties with the pronouns that are appropriate, and explicitly state that they're doing so out of respect, not because they're making a legal determination of gender whatsoever. And we also see in Supreme Court cases that we have briefs filed by trans-antagonistic, anti-trans people that adopt the correct pronouns. Again, ultra respect, indicating in a footnote, that the use of these pronouns, the use of gender-appropriate language, is not meant to symbolize anything other than that.

When we're using the words out of respect, it doesn't necessarily mean that we are agreeing to anything other than respecting an individual. So when we refer to a judge as ‘Your Honor,’ we're not expressing anything distinct for the judge’s honorability. So now to pick apart and to say, ‘Pronouns absolutely have to mean some larger message,’ is quite frankly, just ridiculous.

JV: You published an article about this in 2020, I believe. How has it gone since then? Have any state bars passed rules related to this? Have you seen any movement in other directions?

CTM: So there actually has been a trend, basically in the northeast, which is where I've been following it, against misgendering and a greater awareness of misgendering within the legal system. Courts have adopted or there has been a movement against judges misgendering parties. Insofar as it applies to lawyers, there has been quite a bit of pushback from persons who have said, ‘Using these terms would be an infringement of their right to religious belief.’ But most recently, there's been some debate in Massachusetts, I think it was, and they did choose to adopt the rule.

JV: I know we can't get to all the ins and outs of this argument or your article. But is there anything else you would like to add about the topic?

CTM: We can more easily understand why it is offensive to call a grown African American adult man ‘boy.’ But we are lacking in understanding why it would be wrong to call a transgender girl or a non-binary child a ‘boy’ as well. And so I think putting these historical similarities together will kind of bridge the gap between verbal harassment that we understand in our collective consciousness, and ones that we're still trying to figure out.

Jeff is a part-time reporter for Wyoming Public Media, as well as the owner and editor of the Laramie Reporter, a free online news source providing in-depth and investigative coverage of local events and trends.
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