Pronouns and Cases Involving Transgender Parties

From In the Interest of C.G., decided today by the Wisconsin Supreme Court, in an opinion by Justice Rebecca Grassl Bradley, agreed with in relevant part by all the Justices except Justice Brian Hagedorn:

Because Ella [the pseudonym the parties used for the petitioner] entered the juvenile justice system as a male, many relevant records——including records prepared at the direction of Ella's appellate counsel——refer to her using male pronouns. When quoting those records, we use those pronouns. Elsewhere in our opinion, however, we use female pronouns out of respect for Ella's individual dignity. All parties and amici curiae used her preferred pronouns in their briefing, and the court of appeals used them in its published opinion.

{We recognize the use of preferred pronouns is a controversial issue. No law compels our use of Ella's preferred pronouns; we use them voluntarily. Our decision to do so bears no legal significance in this case, nor should it be construed to support their compulsory use.

Although cautioning courts to "remain scrupulously neutral" with respect to the use of pronouns, Justice Brian Hagedorn does not recognize in his concurrence that referring to Ella as C.G. will be seen as a partisan choice by many readers. The "ontological and moral question[]" over pronouns is neither legal in nature nor within the scope of the issues presented. We join the parties and the court of appeals in referring to Ella using her preferred pronouns.

In addition to showing respect for Ella's individual dignity, using the same convention as the parties ensures we "remain scrupulously neutral"——in contrast, Justice Hagedorn uses a convention even the State, which is adversarial to Ella, has chosen not to use. The only alternatives to choosing between masculine and feminine pronouns in this opinion would either offend the rules of grammar (the singular "they") or produce a stilted writing (exclusive use of proper nouns).}

Justice Hagedorn took a different view:

I write separately to address a sensitive matter. The majority/lead opinion explains that it uses "female pronouns out of respect for Ella's individual dignity," acknowledging "[n]o law compels our use of Ella's preferred pronouns; we use them voluntarily."  The dissent and the court of appeals make the same editorial decision. Whether to use an individual's preferred pronouns, rather than those consonant with one's biological sex, presents ontological and moral questions about our identity as human beings. It is a matter deeply personal to those who wish to be called by certain pronouns, and to many who are asked to call others by their preferred pronouns.

These relatively new cultural debates are, in the main, not questions courts are well-equipped to answer. As a court of law, we should do our best to remain agnostic regarding debates where the law does not supply an answer. This is motivated in part by the modest nature of the judicial role, and in part out of the prudential concern that these contested moral matters could soon become contested legal matters.  The court's decision to use female pronouns could be misread as suggesting that someone who identifies as a female is in fact a female, under the law or otherwise. See also United States v. Varner (5th Cir. 2020) (presenting additional reasons why the court's use of a party's preferred pronouns could prove problematic). We should aim to avoid any unintended legal consequences of our language choices.

C.G.'s decision to identify as a woman is grounded in a particular way of understanding sex and gender——one rooted in a person's individual sense of identity. This view is a departure from what was widely accepted just a few years ago and is by no means universally shared today. Without question, C.G. should be treated with the same dignity and respect as any other litigant before this court. But I believe we would do well to remain scrupulously neutral rather than assume that pronouns are for choosing. These matters of grammar have downstream consequences that counsel caution, particularly as a court of law where such decisions could have unknown legal repercussions.

For a bit of the factual backstory, which may be relevant because it may illustrate how use of pronouns might color readers' perspective: Petitioner C.G. was found to have sexually assaulted a 14-year-old boy (whom the opinion calls Alan, a pseudonym) who had been "diagnosed with autism" and who was apparently working in school at three grades below his age level.

At the time, C.G., who was 15 and who would a year later be 300-345 pounds and 6'4″ or 6'5″, was apparently perceived by people, or at least by Alan, as male. The court notes that, though, C.G. "questioned her gender identity throughout her adolescence," "she began to express 'thoughts of transitioning'" after "the State filed a delinquency petition" based on the sexual assault. In the assault, C.G. and a female classmate held down Alan (who was 110 pounds and 5'10") and covered his mouth while C.G. performed oral sex on Alan. The opinion notes that "Alan is a heterosexual male," who objected precisely because "he 'did not want to get "head" from a guy.'"