CBA Record January-February 2022

Lawyers’Role What can lawyers do to treat non-binary cli- ents with respect? Lawyers should acknowl- edge the shift toward inclusive language and try to implement it with their clients and other individuals. Ellis recommends the following approach: • Initiate conversations with clients about pronoun usage. • Worried about confusing or distracting the reader? Explain the intentional use of pronouns or honorifics in text or footnotes. • To address concerns about clarity of ante- cedents, consider rephrasing. • Legal writing professors: train the next generation of lawyers by requiring students to incorporate litigants’ pronouns and honorifics into assignments. Courts:Where DoThey Stand? Have courts adopted gender-neutral pro- nouns for non-binary individuals? It is too early to tell. We have insufficient evidence to show courts’ widespread rejection or acceptance of gender-neutral pronouns for non-binary individuals. However, Hyman sees a trend among courts to become more gender inclusive in their language. He notes many judges have individual rules for gender inclusive language. He also calls for such requirements in Illinois. “It is time that in Illinois we make this part of the rules for writing in court. Illinois doesn’t have that yet.” While many courts have opted to address litigants by their preferred pronouns, this practice is not unanimous. One FifthCircuit decision from 2020 criticized a litigant’s request to be addressed by her preferred pro-

party’s personal pronouns and choice of honorifics (e.g., Mr., Ms., Mx.). • Incorporate requirements in local court rules or casemanagement orders for parties to exchange and use identified pronouns and honorifics in oral and written com- munications. • Hold lawyers accountable if they fail to honor identified pronouns and honorifics. Moving Forward As we all try to be more inclusive in our writ- ing, we may make mistakes. My apologies if I have misused any terms in this column. Please know I intend to treat all readers with respect. In my next column, I will address common complaints about writing with the singular they. I will also provide concrete tips on how tomake your writingmore inclusive and clearer at the same time. Ellis hopes a focus on pronouns “helps everyone become more mindful in how we use them. In doing so we want to promote the principles of diversity, inclusion, and equity. Just by these small words we use every time we speak…. [I]f we come from a place of good faith and realize what we’re really talking about is respect, then we will be doing the right thing. And in my view, that is why pronouns matter.”

nouns, stating “If a court orders one litigant referred to as ‘her’ (instead of ‘him’), then the court can hardly refuse when the next litigant moves to be referred to as ‘xemself ’ (instead of ‘himself ’). Deploying such neologisms could hinder communication among the parties in the court.” United States v. Varner , 948 F.3d 250, 257 (5th Cir. 2020). The dissent in Varner noted, “[T]hough no law compels granting or denying such a request [to use preferred pronouns], many courts and judges adhere to such requests out of respect for the litigant’s dignity.” What should courts do? Ellis recom- mends judges cultivate a courtroom culture that expressly honors gender inclusive lan- guage by doing the following: • Set an example by using parties’ and wit- nesses’ pronouns in the courtroom and in judicial opinions. • Inform litigants and their attorneys about the procedure for notifying the court of a


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