LGBTQ+ Organizations Respond to Judge Boonstra in “People vs. Gobrick”
January 28, 2022
Chief Justice Bridget McCormack
Michigan Supreme Court
Michigan Hall of Justice
925 West Ottawa Street, 6th floor
Lansing, MI 48195
McCormackB@courts.mi.gov
Elizabeth Gleicher, Chief Judge
Michigan Court of Appeals
Cadillac Place
3020 West Grand Boulevard, 14th floor
Detroit, MI 48202-6020
GleicherE@courts.mi.gov
Dear Chief Justice McCormack and Chief Judge Gleicher:
We the undersigned write in response to Michigan Court of Appeals Judge Mark Boonstra’s concurring opinion in the case of People v Gobrick, unpublished per curiam opinion of the Court of Appeals, issued December 21, 2021 (Docket No. 352180). Judge Boonstra’s concurrence objects to the court majority referring to the defendant in accordance with their gender pronouns. Despite his assertions to the contrary, Judge Boonstra’s opinion reflects both a lack of understanding of and intolerance towards transgender people. As a private citizen he is entitled to his personal and political opinions regarding transgender people. However, as a member of Michigan’s judicial branch, his opinion, whether he intended to or not, sends a message to Michigan’s transgender citizens that they are not to be accorded the same dignity, courtesy and fairness given to cisgender litigants and raises doubt that they will have access to equal justice in Michigan courts. In addition, the tone and content of the concurring opinion is not consistent with the Michigan Code of Judicial Conduct. We hope that you will take this opportunity to promote greater awareness and consistent use of respectful pronoun usage by and in the judiciary.
The Gobrick Opinions
In Gobrick, a three-judge panel of the Court of Appeals affirmed the criminal conviction of the defendant. The court majority acknowledged in a footnote that Defendant’s counsel referred to Defendant in their appellate brief as a transgender female who uses the gender non-binary pronouns, “they/them.” The majority noted that the prosecuting attorney also referred to Defendant as they/them in their appellate brief and during oral argument, and that the Court would do the same, explaining:
All individuals deserve to be treated fairly, with courtesy and respect, without regard to their race, gender or any other protected personal characteristic. Our use of nonbinary pronouns respects defendant’s request and has no effect on the outcome of the proceedings. [Gobrick, unpub op at 2 n 1.]
In addition, the majority cited articles in the Michigan Bar Journal and the American Bar Association Journal, the definition of “they” in the Merriam-Webster Dictionary, and the American Physiological Association’s style guide. In sum, the majority supported its decision with a well-reasoned, informed explanation, supported with appropriate references.
Judge Boonstra’s concurrence strongly takes issue with acknowledging Defendant’s pronouns. “This court should not be altering its lexicon whenever an individual prefers to be identified in a manner contrary to what society throughout all of human history has understood to be the immutable truth.” Gobrick (Boonstra, J., concurring), unpub op at 1. Judge Boonstra then refers to a purported quote from President Abraham Lincoln that states: “How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it leg.” Id.
Judge Boonstra further writes that a litigant’s right to self-identify “frankly should not be of interest or concern to the Court unless it somehow impacts the resolution of the case before us. We as a Court should be writing for clarity and focusing on legal issues, not spending our time making our opinions less clear, all so that we may conform to a particular litigant’s predilections.” Id. at 1–2.
Judge Boonstra characterizes Defendant as a “biological man,” and concludes:
[O]nce we start down the road of accommodating pronoun (or other) preferences in our opinions, the potential absurdities we will face are unbounded. I decline to start down that road, and … do not believe we should be spending our time crafting our opinions to conform to the “wokeness” of the day.
I decline to join in the insanity that has apparently now reached the courts. [Id. at 2.]
Judge Boonstra does not cite to any primary or secondary legal sources.
Transgender Identity
In responding to Judge Boonstra’s concurrence, we think it is important to begin by sharing information about transgender identity and the transgender community. “Transgender” is an umbrella term that refers to individuals whose gender identity is different from the sex assigned to them at birth. Contrary to Judge Boonstra’s assertions of “immutable truth,” recent scientific studies demonstrate that there is a genetic and biological component to a person’s gender identity.
Many people who identify as transgender have been diagnosed with gender dysphoria. Gender dysphoria refers to the distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth. Gender dysphoria is a serious medical condition codified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) and International Classification of Diseases (ICD -10). Symptoms include the belief that an individual was improperly assigned the wrong sex at birth and the desire to be, and to be treated as, the other gender. Persons diagnosed with gender dysphoria often experience psychological and physical stress as a result of this incongruency. Left untreated, some persons living with gender dysphoria can experience severe depression and suicidal ideation.
The World Professional Association for Transgender Health (WPATH) is an international, multidisciplinary, professional association whose mission is to promote evidence-based care, education, research, advocacy, public policy, and respect in transgender health. WPATH publishes Standards of Care (SOC) for treatment of gender dysphoria which are recognized as the authoritative SOC by leading medical organizations, the U.S. Department of Health and Human Services, and federal courts.
It is the recognized standard of care to treat gender dysphoria with gender confirmation. Gender confirmation is not the same for every transgender person but usually consists of one or more of the following components: (1) social transition; (2) hormone therapy; and (3) gender confirmation surgery. Some transgender persons undergo all three components. Others do not. Social transition involves adopting a gender role and gender presentation that is congruent with a person’s gender identity. This includes using pronouns that are congruent with the person’s gender identity.
Contrary to Judge Boonstra’s opinion, acknowledgment by the Court of transgender litigants’ pronouns is neither absurd nor conformity to “wokeness” or “predilections.” It is acknowledging the existence of transgender people and according them the same dignity afforded to other litigants. No one would question the propriety of referring to cisgender litigants with male or female pronouns. A pronoun is not a preference but a statement of fact for all people. According to a 2016 Williams Institute Study, approximately 33,000 transgender people reside in the State of Michigan, throughout every county in the State. In a 2021 nationwide study by the Williams Institute it is estimated that 42% of transgender people (ages 18-60) identify as gender non-binary and utilize they/them pronouns.
Due to the lack of understanding of gender identity and gender dysphoria, discrimination against transgender people is pervasive in every facet of life. The 2015 U.S. Transgender Survey conducted by the National Center for Transgender Equality found that that 63% of transgender survey participants have “experienced a serious act of discrimination—one that would have a major impact on a person’s quality of life and ability to sustain themselves financially or emotionally.” This includes discrimination in employment, housing, education, and public accommodations, including access to health care. Transgender people are more likely to experience homelessness, and are more likely to be victims of sexual assault and physical violence due to their gender identity. The most recent FBI Hate Crimes Report shows that hate crimes against transgender people (particularly transgender women of color) have increased over the past two years. In 2019 alone at least 27 transgender or gender non-conforming people were fatally shot or killed by other violent means.
According to the Human Rights Campaign, 2021 surpassed 2015 as the worst year yet for anti-LGBTQ legislation in recent history. Lawmakers in state legislatures launched an unprecedented war on the transgender community with bills that included criminalizing providing life saving medical care to transgender youth, prohibiting transgender girls from being able to participate in school sports in accordance with their gender identity, and denying trans people the ability to obtain accurate birth certificates. The beginning of 2022 already has seen similar legislation introduced, in addition to bills that prohibit transgender people from being able to use public restrooms in accordance with gender identity.
Discrimination against transgender people also extends to the courts. In a study conduct by the Lambda Legal Defense and Education Fund, 33% of transgender litigants (the number increases to 53% for transgender litigants of color) report hearing judges, attorneys, or other court employees making negative comments about their gender identity and or sexual orientation. According to the report, “[t]ransgender people must often deal with judges, attorneys and court employees who refuse to acknowledge or respect their gender identity, do not use their preferred names and pronouns, and in the case of judges, may even make rulings that force transgender people to deny their true identity.” The 2015 U.S. Transgender Survey reports that 13% of transgender persons who visited a courtroom or courthouse in the past year were denied equal treatment or service, verbally harassed or physically attacked because of being transgender. Given the mistreatment of transgender people by the courts, it should not come as a surprise that Lambda’s report shows that only 28% of transgender and gender non-conforming people surveyed trust the courts to provide fair treatment. Overall trust in the courts was found to be lower than trust in the police, where significant harassment and mistreatment also occurs.
Michigan’s Code of Judicial Conduct
Michigan’s Code of Judicial Conduct requires both judges and court staff to treat litigants with both courtesy and respect. Canon 3(A)(14), which applies to the conduct of the judge and the judge's staff, states as follows:
Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect. To the extent possible, a judge should require staff, court officials, and others who are subject to the judge’s direction and control to provide such fair, courteous, and respectful treatment to persons who have contact with the court.
Canon 3B(2) requires a judge to “direct staff and court officials subject to the judge’s control to observe high standards of fidelity, diligence, and courtesy to litigants, jurors, witnesses, lawyers, and others with whom they deal in their official capacity.”
These canons reflect that it is the responsibility of Michigan judges to ensure access to our courts and equal treatment under the law for all people, including transgender people. Where people feel unsafe or uncomfortable in court or participating in our legal system because of their gender identity, access to justice and full participation in our democracy are undermined. A person’s identity, including their name and pronouns, is a powerful, central element of someone’s dignity and humanity. When a judicial officer refuses to acknowledge someone’s pronouns, they are asserting a power to deny their identity and effectively erase them from our society.. Using the articulated pronouns of litigants and their attorneys, by contrast, is a positive start towards equity and inclusion in Michigan’s courts. Unfortunately, Judge Boonstra’s concurrence, no matter the intention, has sent the message to transgender persons that they are less accepted than other litigants and thus unwelcome to access justice.
Need for Cultural Competency Training and Standards for Pronoun Usage
Judge Boonstra’s uninformed statements are unacceptable if Michigan is to ensure that transgender people are provided equal access to justice. We urge the judiciary and the bar to take this opportunity to invest in LGBTQ cultural competency training in Michigan . Recently, United States Magistrate Judge Mustafa Kasubhai began identifying his own pronouns during judicial proceedings and inviting others to do the same, describing this effort as part of his “commit[ment] to findings ways to increase access to the courts.” A number of organizations have developed educational materials for the purpose of training both judges and court staff regarding cultural competency, which include the importance of the use of pronouns as a form of access to justice. Michigan should utilize these materials and implement a training program.
Similarly, advocates in states such as New York have concluded that courts are duty-bound to acknowledge the requested pronouns of all litigants and parties before them, in both pleadings as well as inside the courtroom, as a vital component of equal access to justice. We urge the Michigan judiciary to adopt similar standards of conduct and pronoun usage.
Finally, we note that in Judge Boonstra’s own concurring opinion, he wrote that he “respect[ed] the right of . . . style-guide writers” to adopt the pronoun usage of the majority. Gobrick (Boonstra, J., concurring), unpub op at 2. Accordingly, we believe this would be an excellent opportunity for the Michigan courts to officially adopt a style-guide standard for pronoun usage similar to those cited by the Gobrick majority. Such a standard could be set forth in the Michigan Appellate Opinion Manual, the courts’ internal operating procedures, a benchbook, or some other appropriate publication.
Sincerely,
The LGBTQA Section of the Michigan State Bar
American Civil Liberties Union (ACLU) of Michigan
Equality Michigan
Affirmations LGBTQ Community Center
Ruth Ellis Center
Out Center of Southwestern Michigan
OutFront Kalamazoo
SAGE (Services and Advocacy for LGBTQ Older Adults) Metro Detroit
GLSEN (LGBT-Straight Education Network) Detroit
Stand With Trans
Transgender Michigan
Transcend the Binary
Trans Sistas of Color
Great Lakes Bay Pride
Grand Rapids Pride
Out on Lakeshore
Prism Detroit
Stonewall Sports
Michigan Unitarian Universalist Social Justice Network
Up North Pride
Gender Identity Network Alliance
