Michigan Courts Wade Back Into Culture War With Anti-Bias Plan

An anti-bias proposal under consideration by the Michigan Supreme Court could reopen fissures in the state’s legal community that erupted around the justices’ decision to encourage judges to use the preferred pronouns of lawyers and litigants.

The pronouns ethics rule, which was originally proposed as more of a mandate, spurred a vigorous comment campaign over free speech and the role of the courts in culture wars. The rule, enacted in 2023 over the dissent of two justices, requires courts to “use the individual’s name, the designated salutation or personal pronouns, or other respectful means that are not inconsistent with the individual’s designated salutation or personal pronouns when addressing, referring to, or identifying the party or attorney, either orally or in writing.”

Few problems, if any, have arisen since the rule went into effect. The Michigan Judicial Tenure Commission has received no complaints for violations, according to its executive director. A spokesman for the State Court Administrative Office also received “no feedback” from lower courts, and the chief judge of the Third Circuit Court in Detroit, the largest in the state, said none of her 58 colleagues have raised any issues with her.

But those on both sides of the debate may find themselves in another comment battle as the justices consider new regulations that, among other things, aim to prevent bias and harassment against members of the LGBTQ+ community by lawyers and judges. The new proposal, which like the pronouns rule follows the lead of the American Bar Association, includes lists of things lawyers and judges can’t express bias about “by words or conduct,” such as “gender identity or expression” and “sexual orientation.”

The court is accepting comments on the proposed anti-bias regulations until July 1. The proposal is already drawing strong responses.

“I believe it essentially creates a speech code for lawyers, and being ambiguously worded, without clear definitions of what speech would be prohibited, would allow the bar association to discipline lawyers if they say something that the bar disagrees with,” attorney Wayne G. Wegner of St. Clair Shores, Mich. wrote. “Are we going to see the weaponizing of the State Bar to control the free speech of lawyers.”

It’s a much different political climate than when the Michigan high court, which is controlled by Democrat-backed justices 6-1, passed the pronouns rule. The new proposal comes as President Donald Trump has targeted diversity, equity, and inclusion efforts in the government, Big Law, and beyond since he took office in January.

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Zoe Hayes, a University of Michigan law student and co-president of the school’s OUTlaws LGBTQ+ group, pointed to the Trump administration’s actions as a reason why explicit state ethics rules are needed.

“It gives people not heard in the court system a better framework for how to identify how they’re wronged,” she said.

Michigan needs to “become more of a safe haven for queer and trans people who are quite explicitly under attack,” Hayes added.

The justices put the anti-bias proposal forth for comment by a 6-1 vote. Conservative Justice Brian K. Zahra, who dissented on the final pronouns rule along with a since-departed colleague, was the lone vote against advancing the latest proposal. Chief Justice Megan K. Cavanagh, a liberal jurist who voted in favor of the pronouns rule, and Zahra both declined to comment.

William R. Bloomfield, general counsel for the Catholic Diocese of Lansing and president of its Catholic Lawyers Guild, said some of the same problems that arose with the pronouns rule before its passage are at issue with the new proposal. He highlighted vague language and wondered, “what does it mean to manifest bias ‘by words or conduct?’”

Bloomfield said the Supreme Court assuaged some concerns about its pronouns rule with tweaks for the final version, including specifying which pronouns and salutations may be used and including the phrase “or other respectful means that are not inconsistent with the individual’s designated salutation or personal pronouns.”

He described the final court-crafted pronouns rule as “mostly satisfactory,” but noted he thinks it wasn’t necessary because others on the books require lawyers and judges to be respectful.

“Why is treating people with civility and respect not enough?” he said.

At a basic level, the anti-bias proposal, like the pronouns rule, is necessary to ensure transgender litigants and lawyers get the respect they deserve, said Jay Kaplan, an American Civil Liberties Union of Michigan staff attorney who focuses on LGBTQ+ rights. He noted that Michigan passed legislation in 2023 adding sexual orientation and gender identity to the list of classes protected by law from discrimination.

“You are a judicial officer and your duty as a judge or working for court means you also have to adhere to civil rights laws,” Kaplan said.