106A - AMERICAN BAR ASSOCIATION ADOPTED BY THE ...
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106A
AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
FEBRUARY 22, 2021
RESOLUTION
RESOLVED, That the American Bar Association encourages use within the legal
profession and justice system of pronouns consistent with a person’s gender identity,
including in filed pleadings, during mediations and court proceedings, and within judicial
opinions: and
FURTHER RESOLVED, That the American Bar Association urges all federal, state, local,
territorial, and tribal judiciaries to draft and implement rules regarding respect for
pronouns consistent with a person’s gender identity, so as to promote full and equal
participation.106A
REPORT
This Resolution encourages respect for the gender identities and pronouns of participants
within the legal profession and justice system, which will make those systems more
welcoming to (and less exclusionary toward) individuals of all gender identities, ultimately
helping to effectuate Goal III of the American Bar Association mission.
ABA Goal III seeks to eliminate bias and enhance diversity by: (1) promoting full and
equal participation in the association, our profession, and the justice system by all
persons; and (2) eliminating bias in the legal profession and the justice system. 1 Full and
equal participation must be inclusive of persons of varying genders, national origins, racial
and ethnic backgrounds, physical and mental abilities, veteran status, familial status,
citizenship or immigration status, socioeconomic status, sexual orientations, and gender
identities. 2
What Is “Gender Identity”?
“Gender,” generally, refers to the behavioral, cultural, or psychological traits that are
constructed by society. 3 Although Anglo-American society has typically focused on the
gender binary of feminine/female or masculine/male, many societies throughout human
history have seen–and continue to see–gender as a spectrum that is not limited to the
female/woman and male/man possibilities. 4
In addition to being a spectrum, the concept of “gender” actually consists of many parts,
including gender expression, identity, and presentation: 5
• “Gender identity” is one’s innermost concept of self and gender, which can
be the same or different from the sex assigned to them at birth. 6
• “Gender expression” is how one chooses to express gender in public,
through such things as haircut, clothing, voice, body characteristics, and
behavior. 7
1 Americanbar.org. (2019). ABA Mission and Goals. [online] Available at:
https://www.americanbar.org/about_the_aba/aba-mission-goals/ [Accessed 31 May 2020].
2 See, e.g., the Young Lawyers Division’s Diversity & Inclusion efforts, including full and equal membership
participation “inclusive of lawyers of varying gender, national origin, racial and ethnic backgrounds, sexual
orientation and gender identity, and of lawyers with disabilities.” Americanbar.org. (2019). Diversity and
Inclusion. [online] Available at: https://www.americanbar.org/groups/young_lawyers/projects/diversity/
[Accessed 31 May 2020].
3 Mora, C. (2018). What Is the Singular They, and Why Should I Use It?. [online] What Is the Singular They,
and Why Should I Use It? | Grammarly. Available at: https://www.grammarly.com/blog/use-the-singular-
they/ [Accessed 31 May 2020]; Merriam-webster.com. (2020). Definition of GENDER. [online] Available at:
https://www.merriam-webster.com/dictionary/gender [Accessed 31 May 2020].
4 Gender Spectrum. (2019). Understanding Gender. [online] Available at:
https://www.genderspectrum.org/quick-links/understanding-gender/ [Accessed 31 May 2020].
5 Trevor Support Center. (2020). Trans + Gender Identity. [online] The Trevor Project. Available at:
https://www.thetrevorproject.org/trvr_support_center/trans-gender-identity/ [Accessed 31 May 2020].
6 Merriam-webster.com. (2020). Definition of GENDER IDENTITY. [online] Available at:
https://www.merriam-webster.com/dictionary/gender%20identity [Accessed 31 May 2020]; Human Rights
Campaign. (2020). Sexual Orientation and Gender Identity Definitions | Human Rights Campaign. [online]
Available at: https://www.hrc.org/resources/sexual-orientation-and-gender-identity-terminology-and-
definitions [Accessed 31 May 2020].
7 Trevor Support Center.106A
• “Gender presentation” is how the world sees and understands one’s
gender. 8
Someone who feels like their gender identity does not match the “sex” (e.g., “female” or
“male”) assigned to them by the doctor when they were born, may identify as transgender.
Also, someone who feels like their gender identity is neither exclusively female/woman
nor male/man, may identify as gender nonbinary. 9 The word “transgender” itself is an
adjective (not a noun) that can describe the nouns of “woman,” “man,” or even “nonbinary”
or some other term. 10
Attitudes and perceptions regarding gender identity are rapidly changing in the United
States: 50% of Millennials (defined as ages 18 to 34) who participated in Fusion’s Massive
Millennial Poll in 2016, felt that gender is a spectrum and “some people fall outside
conventional categories.” 11 And, a 2017 survey by multinational market research and
consulting firm, Ipsos Group S.A., regarding global attitudes toward transgender people,
indicated “a strong majority of people around the world [60%] would like their country to
do more to support and protect transgender people.” 12 In the United States, the
percentage of the sample who would like the country to do more to support and protect
transgender people was 51%. 13
Legal designations through the U.S. are also rapidly changing, such that all states in the
U.S. now permit changes to gender designations on driver’s licenses. Most U.S. states
also permit changes to gender markers on birth certificates. 14
In addition, several states and Washington, D.C. now offer nonbinary gender options on
driver’s licenses and/or birth certificates, including California, 15 Arkansas, Colorado,
8 Id.
9 Id.; Human Rights Campaign.
10 Saying “transgendered” as an adverb is never correct. Trevor Support Center.
11 Wong, C. (2016). 50 Percent Of Millennials Believe Gender Is A Spectrum, Fusion’s Massive Millennial
Poll Finds. [online] Huffpost.com. Available at: https://www.huffpost.com/entry/fusion-millennial-poll-
gender_n_6624200 [Accessed 31 May 2020].
12 Ipsos. (2018). Global Attitudes Toward Transgender People. [online] Available at:
https://www.ipsos.com/en/global-attitudes-toward-transgender-people [Accessed 31 May 2020].
13 Id.
14 National Center for Transgender Equality. (May 2020). How Trans-Friendly is The[] Driver’s License
Gender Change Policy in Your State? [online] TransEquality.org. Available at:
https://transequality.org/sites/default/files/images/Drivers%20License%20Grades%20May%202020.pdf
and https://transequality.org/documents [Accessed 31 May 2020]; National Center for Transgender
Equality. (April 2020). Summary of State Birth Certificate Gender Change Laws. [online] TransEquality.org.
Available at:
https://transequality.org/sites/default/files/images/Summary%20of%20State%20Birth%20Certificate%20L
aws%20Apr%2028%202020.pdf and https://transequality.org/documents [Accessed 31 May 2020].
15 Dmv.ca.gov. (2019). Gender Identity (Female, Male, or Nonbinary). [online] Available at:
https://www.dmv.ca.gov/portal/dmv/detail/dl/gender_id [Accessed 15 Nov. 2019]; Katz, B.
(2017). California Becomes First State to Introduce Gender-Neutral Birth Certificates. [online] Smithsonian.
Available at: https://www.smithsonianmag.com/smart-news/california-becomes-first-state-introduce-
gender-neutral-birth-certificates-180965343/ [Accessed 15 Nov. 2019].
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Maine, Minnesota, New York, Oregon, Washington, 16 Maryland, 17 Massachusetts, 18
Nevada, 19 and New Mexico. 20 Other states (like New Hampshire, Hawaii, Pennsylvania,
Connecticut, New Jersey, Vermont, and Virginia) intend to implement these designation
options in 2020, and, for Illinois, 2024. 21
Why Do Pronouns Matter?
In the English language, third-person personal pronouns are used when referring to
someone else. For example, in the sentence “Assembly participants must listen to Jamie
Davis because she is the YLD Speaker,” “she” is the third-person personal pronoun
referring to “Jamie Davis.”
Of note, there are pronouns outside of the she/her and he/him gender binary, because,
while some gender nonbinary individuals use masculine or feminine pronouns, some do
not. Individuals who identify as something other than exclusively female/woman or
male/man, may use personal pronouns such as the singular “they,” or other pronouns like
“ze,” “xe,” or something else. 22
Pronouns matter because gendered (and non-gendered) pronouns provide a signal to
other people about the gender of the person being described. 23 And because how the
world sees and understands a person’s gender (their “gender presentation”) is an integral
part of that person’s “gender identity,” when someone “misgenders” someone else (by
16 Thomas Reuters Foundation. (2019). Nonbinary? Intersex? 11 U.S. states issuing third gender IDs.
[online] Available at: https://www.reuters.com/article/us-us-lgbt-lawmaking/nonbinary-intersex-11-us-
states-issuing-third-gender-ids-idUSKCN1PP2N7 [Accessed 15 Nov. 2019].
17 Wood, P. (2019). Maryland to allow a ‘nonbinary’ gender option on voter registration and driver’s licenses.
[online] Los Angeles Times. Available at: https://www.latimes.com/nation/la-na-maryland-nonbinary-
gender-voter-registration-20190705-story.html [Accessed 15 Nov. 2019].
18 McDonald, D. (2019). Non-binary gender designation is now available on Mass. licenses. [online]
BostonGlobe.com. Available at: https://www.bostonglobe.com/metro/2019/11/12/non-binary-gender-
designation-now-available-mass-licenses/tYhisCa1QAq66PSdSfsyBK/story.html [Accessed 15 Nov.
2019].
19 Nevada Department of Motor Vehicles. (2019). Nevada Implements Gender-Neutral IDs: Nonbinary
Gender X is now an option. [online] DMVNV.com. Available at: https://dmvnv.com/news/19001-gender-x-
available.htm [Accessed 31 May 2020].
20 New Mexico Department of Health (2019). New Mexico Becomes Fourth State to Allow Gender-Neutral
Sex Designation on Birth Certificates. [online] NMHealth.org. Available at:
https://nmhealth.org/news/information/2019/10/?view=810. [Accessed 12 Jan. 2020].
21 Haime, J. (2019). N.H. Becomes 13th State To Add Non-Binary Gender Option On Drivers Licenses.
[online] New Hampshire Public Radio. Available at: https://www.nhpr.org/post/nh-becomes-13th-state-add-
non-binary-gender-option-drivers-licenses#stream/0 [Accessed 15 Nov. 2019]; Campisi, J. (2019). Hawaii
adds nonbinary gender option to driver's licenses. [online] TheHill. Available at:
https://thehill.com/homenews/state-watch/450767-hawaii-adds-nonbinary-gender-option-to-drivers-
licenses [Accessed 15 Nov. 2019]; Boeckel, T. (2019). Pennsylvania to offer gender-neutral driver's
licenses in 2020. [online] USAToday. Available at:
https://www.usatoday.com/story/news/2019/07/31/pennsylvania-offering-gender-neutral-drivers-
licenses/1878727001/ [Accessed 15 Nov. 2019]; National Center for Transgender Equality. (April 2020).
22 See Mora, supra note 3.
23 Baume, M. (2019). Singular ‘They’ Pronoun Endorsed by American Psychological Association. [online]
Out.com. Available at: https://www.out.com/health/2019/11/05/singular-they-pronoun-endorsed-american-
psychological-association?fbclid=IwAR1n5WFeM_TO5KsBuO2dO606-
myGvk5jtcXD3WURwuJs_mQXtpi13GOdVTo [Accessed 31 May 2020].
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using pronouns that do not coincide with the person’s identity), there are many negative
psychological and societal consequences. 24
According to a 2014 study in the peer-reviewed psychology journal Self and Identity, 25
people feel stigmatized when they are misgendered, experience lower self-esteem, and
have “a reduced sense of strength and continuity in their identity.”26 One person surveyed
described the feeling of being misgendered as a “shock of painful tension throughout my
body.”27 Other studies of the effects of disidentification with gender-specific language in
the professional context note that people experienced “a lower sense of belonging [and]
reduced motivation” when the pronouns used did not match their gender identity. 28
As the American Psychological Association (“APA”) makes clear, “[r]espectful and
inclusive language is important,” 29 with specific and careful gender-pronoun usage being
an integral part of implementing bias-free language. 30 Writers “must strive to use
language that is free of bias and avoid perpetuating prejudicial beliefs or demeaning
attitudes.”31 Furthermore, while general misgendering exhibits bias, intentional
misgendering often meets the definition of harassment and discrimination. 32
The ABA YLD has already followed suit in eliminating gender-biased language, by
amending its bylaws to use gender nonbinary pronouns.
This Resolution now urges the judiciary to do the same: eliminate use of gender-biased
language by drafting and implementing rules regarding respect of participants’ gender
identities and pronouns. Using a person’s correct gender pronouns is a simple way to
show respect for the person’s gender identity and avoid harmful and discriminatory
conduct that exhibits bias, prejudice, and harassment. 33 Furthermore, ABA Goal III
24 University of California San Francisco, LGBT Resource Center. (2019). Pronouns Matter. [online]
Available at: https://lgbt.ucsf.edu/pronounsmatter [Accessed 31 May 2020]; Clements, KC. (2017). What
Does It Mean to Misgender Someone? [online] HealthLine.com Available at:
https://www.healthline.com/health/transgender/misgendering [Accessed 31 May 2020]; Scandurra, C.,
Mezza, F., Maldonato, N., Bottone, M., Bochicchio, V., Valerio, P. and Vitelli, R. (2019). Health of Non-
binary and Genderqueer People: A Systematic Review. Frontiers in Psychology, 10; APA Style. (2020).
Bias-Free Language. [online] Available at: https://apastyle.apa.org/style-grammar-guidelines/bias-free-
language [Accessed 31 May 2020], and Gender. [online] Available at: https://apastyle.apa.org/style-
grammar-guidelines/bias-free-language/gender [Accessed 31 May 2020].
25 Taylor & Francis. (2020). Journal, Self and Identity, Aims and scope. [online] Taylor & Francis Online.
Available at:
https://www.tandfonline.com/action/journalInformation?show=aimsScope&journalCode=psai20 [Accessed
31 May 2020].
26 Clements, KC., referencing McLemore, K. (2014). Experiences with Misgendering: Identity
Misclassification of Transgender Spectrum Individuals. Self and Identity, 14.1. [online] Available at:
https://www.tandfonline.com/doi/abs/10.1080/15298868.2014.950691 [Accessed 31 May 2020].
27 Id.
28 APA Style. (2020). Gender, referencing Stout, J. & Dasgupta, N. (2011). When he doesn’t mean you:
Gender-exclusive language as ostracism. Personality and Social Psychology Bulletin, 37(6). [online]
Available at: https://journals.sagepub.com/doi/10.1177/0146167211406434 [Accessed 31 May 2020].
29 Baume, M. (2019).
30 APA Style. Bias-Free Language and Gender.
31 Baume, M. (2019), quoting the APA.
32 See Clements, supra note 26.
33 University of California San Francisco, LGBT Resource Center; Klements, KC.; APA Style Gender.
4106A
emphasizes promoting full and equal participation in the judicial system by participants of
varying gender identity–transgender and gender nonbinary identities included. This
Resolution fosters those efforts.
The Case of Kathrine Nicole Jett
In 2018, Kathrine Nicole Jett, a transgender woman in federal prison, filed a pro-se motion
in the United States District Court for the Eastern District of Texas, requesting the court
update her conviction records to match her gender identity and legal name. Ms. Jett
explained that, after her guilty plea in 2012, she came out as a transgender woman in
2015, had begun hormone replacement therapy, and planned to have gender
reassignment surgery. 34
The District Court denied the motion, stating there was no “defect” in the original records,
given that Jett’s legal name was “Norman Varner” and she presented as a man at the
time the judgment was entered. 35 Ms. Jett appealed, and on January 15, 2020, the 5th
Circuit Court of Appeals, issued an Advisory Opinion denying Ms. Jett’s requests, in
United States of America v. Norman Varner. 36
As outlined in the Court of Appeals Advisory Opinion, the lower court considered and
agreed with the government’s opposition to Ms. Jett’s motion, including: (1) that such
circumstances as gender transition and name change are not listed in the Federal Rules
of Criminal Procedure that allow for amending a judgment; (2) that “Varner” can
nevertheless use “Kathrine Nicole Jett” as a “secondary name or alias,” along with female
pronouns, under Bureau of Prisons regulations for purposes of internal matters; and (3)
that the Kentucky order granting Ms. Jett’s name change was “improperly obtained” and
thus Ms. Jett’s name was not actually changed, anyway. 37
The Fifth Circuit—while referring to Ms. Jett solely as “Varner” and referencing her
throughout its Opinion using male pronouns—essentially affirmed the district court’s
denial of Ms. Jett’s motion, determining that her request was “unauthorized” under the
Federal Rules of Criminal Procedure and the lower court “lacked jurisdiction to entertain
it.” 38
The Court of Appeals further addressed additional motions by Ms. Jett, filed in the appeals
matter itself, which included her request that the Appeals Court use female pronouns
when referencing her. Ms. Jett’s appeals request read:
34
Cassens Weiss, D. (2020). 5th Circuit denied transgender prisoner’s request to use female pronouns,
change court records. [online] ABAJournal.com. Available at:
https://www.abajournal.com/news/article/5th-circuit-denies-transgender-prisoners-request-to-use-female-
pronouns-change-court-records [Accessed 31 May 2020].
35 Id.; Fitzsimons, T. (2020). Trump-appointed judge dismisses trans defendant’s chosen pronouns.
[online] NBCNews.com. Available at: https://www.nbcnews.com/feature/nbc-out/trump-appointed-judge-
mocks-transgender-woman-s-gender-identity-opinion-n1117501 [Accessed 31 May 2020].
36 No. 19-40016 (5th Cir. Jan. 15, 2020). [online] Available at:
http://www.ca5.uscourts.gov/opinions/pub/19/19-40016-CR0.pdf [Accessed 31 May 2020].
37 Id.at 2-3.
38 Id. at 3-5.
5106A
“Motion to Use Female Pronouns When Addressing Appellant. I am a
woman and not referring to me as such leads me to feel that I am being
discriminated against based on my gender identity. I am a woman—can I
not be referred to as one.” 39
and her reply brief continued:
“[r]eferring to me simply as male and with male pronouns based solely on
my biological body makes me feel very uneasy and disrespected.” 40
In denying Ms. Jett’s request to refer to her using female pronouns during the pendency
of the appeal, the Court of Appeals noted that there was no authority requiring that courts
or their participants refer to individuals by pronouns matching their gender identities. The
Court did acknowledge, however, that some courts have done so as a matter of courtesy
or respect. 41
Indeed, as outlined in an Amici Curiae Brief submitted in Ms. Jett’s appeal by the Lambda
Legal Defense and Education Fund, Inc., the Human Rights Campaign, and other
organizations, “a court’s refusal to use pronouns consistent with a litigant’s gender identity
is disrespectful and harmful to transgender litigants and thus undermines public
confidence in the fairness of the court.”42
Moving Toward Full and Equal Participation - Conclusion
The conversation surrounding litigants’ gender identity and pronoun usage within the
judicial system should not be mired in arguments over procedures or precedent, the
sufficiency of other databases using appropriate names, or the validity of name-change
orders. Instead, these discussions should, plain and simple, be about inclusion and
respect.
Full and equal participation of all persons within the legal profession and judicial system
requires respectful acknowledgment of gender identities and the use of consistent. This
Resolution thus encourages respectful recognition of individuals’ gender identities and
pronouns, and it urges judiciaries to draft and implement rules supporting the same.
Respectfully submitted,
Christopher L. Brown
Chair, Young Lawyers Division
February 2021
39 See Cassens Weiss, supra note 36.
40 As quoted in No. 19-40016, at 5.
41
Id. at 6-7.
42 Brief for the Lambda Legal Defense and Education Fund, Inc., et al., United States of America v.
Norman Varner, No. 19-40016 (filed 19 Mar. 2020). Available at:
https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/jett_tx_20200319_amicus-brief.pdf
[Accessed 31 May 2020].
6106A
GENERAL INFORMATION FORM
Submitting Entity: Young Lawyers Division
Submitted By: Christopher L. Brown
1. Summary of Resolution(s).
This resolution encourages respect for the gender identities and pronouns
consistent with a litigant’s gender identity within the legal profession and justice
system, which will make those systems more welcoming to (and less exclusionary
toward) individuals of all gender identities, ultimately helping to effectuate Goal III
of the American Bar Association’s mission. The resolution also urges judiciaries to
draft and implement rules supporting the same.
2. Approval by Submitting Entity.
Approved by the Young Lawyers Division Assembly in August 1, 2020.
3. Has this or a similar resolution been submitted to the House or Board previously?
No.
4. What existing Association policies are relevant to this Resolution and how would
they be affected by its adoption?
ABA Goal III regarding eliminating bias and enhancing diversity would be
supported and promoted by the adoption of this Resolution.
06A122B urges federal, state, local, and territorial governments to enact legislation
prohibiting discrimination on the basis of actual or perceived gender identity or
expression, in employment, housing and public accommodations. The current
resolution reinforces the principles in this earlier resolution.
18M302 urges all employers, and specifically all employers in the legal profession,
to adopt and enforce policies and procedures that prohibit, prevent, and promptly
redress harassment and retaliation based on sex, gender, gender identity, sexual
orientation, and the intersectionality of sex with race and/or ethnicity. The current
resolution reinforces the principles in this earlier resolution.
19M114 urges all courts within the United States to recognize that religiously
neutral laws of general applicability prohibiting discrimination on the basis of sex
(which includes discrimination on the basis of sexual orientation or gender
identity/expression) do not improperly burden the religious free exercise rights of
those operating places of public accommodation. The current resolution reinforces
the principles in this earlier resolution.
5. If this is a late report, what urgency exists which requires action at this meeting?
N/A
6. Status of Legislation (if applicable).
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N/A
7. Brief explanation regarding plans for implementation of the policy, if adopted by
the House of Delegates.
After adoption, the Young Lawyers Division will work with the Governmental Affairs
Office and other entities in the ABA, as well as external entities, to determine the
most effective way to advocate for this Resolution.
8. Cost to the Association (both indirect and direct costs).
No known costs.
9. Disclosure of Interest.
None.
10. Referrals.
Commission on Sexual Orientation & Gender Identity
Commission on Racial & Ethnic Diversity in the Profession
Commission on Women in the Profession
Judicial Division
Law Student Division
Section of Civil Rights and Social Justice
Section of State and Local Government Law
Section of Family Law
Section of Litigation
Center for Professional Responsibility
Government and Public Sectors Lawyers Division
Tort, Trial and Insurance Practice Section
GP Solo
Administrative Law Section
Criminal Justice Section
11. Name and Contact Information (Prior to the Meeting).
Daiquiri Steele
ABA YLD Representative to the ABA House of Delegates
404.964.0158
daiquiri.steele@gmail.com
Christopher Jennison
ABA YLD Speaker
301.538.5705
chris.s.jennison@gmail.com
12. Name and Contact Information (Who will present the Resolution with Report to the
House?)
8106A
Daiquiri Steele
ABA YLD Representative to the ABA House of Delegates
404.964.0158
daiquiri.steele@gmail.com
9106A
EXECUTIVE SUMMARY
1. Summary of the Resolution
This resolution encourages respect for the gender identities and pronouns of
participants in the legal profession and judicial system, and urging judiciaries to
draft and implement rules supporting the same, to promote ABA Goal III by
eliminating bias in the judicial system.
2. Summary of the issue that the Resolution addresses.
To encourage full and equal participation of all persons within the legal profession
and judicial system, it is important to respect participants’ gender identities and
pronouns.
3. Please explain how the proposed policy position will address the issue.
This Resolution will encourage respect for gender identities and pronouns be
shown to all participants in the legal profession and judicial system, and also urge
judiciaries themselves to draft and implement rules regarding such respect.
4. Summary of any minority views or opposition internal and/or external to the ABA
which have been identified.
No opposition is known at this time.
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