A Michigan Court of Appeals judge is under fire after nearly 20 organizations condemned his refusal to use a defendant’s personal pronouns.
In a concurring opinion issued Dec. 21, Judge Mark Boonstra, who was appointed by former GOP Gov. Rick Snyder, declined to acknowledge the defendant in a criminal sex assault case, People v Gobrick, as a transgender female. In the opinion, which upheld the defendant’s conviction, the majority on the three-judge panel noted that both the defense attorney and prosecutor used the appropriate gender nonbinary pronouns “they” and “them” when referring to the defendant.
However, in a concurring opinion, Boonstra refused to do so, calling the defendant a “biological man,” adding that while he respects “the right of every person to self-identify however he or she may wish,” the 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.”
Boonstra’s ire was also directed at his fellow judges. “Once we start down the road of accommodating pronoun (or other) preferences in our opinion, the potential absurdities we will face are unbounded,” he said. “I decline to join in the insanity that has apparently now reached the courts.”
The opinion prompted 19 organizations, including Equality Michigan, the American Civil Liberties Union (ACLU) of Michigan and the LGBTQA Section of the Michigan State Bar, to send a letter to Michigan Supreme Court Chief Justice Bridget McCormack and Michigan Court of Appeals Chief Judge Elizabeth Gleicher.
They stated that Boonstra’s opinion, “reflects both a lack of understanding of and intolerance towards transgender people” and that while he is entitled to his personal and political opinions regarding transgender people as a private citizen, “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.”
However, the criticism went further, alleging that Boonstra’s opinion was contrary to the Michigan Code of Judicial Conduct both for refusing to use the defendant’s proper pronouns, but also for criticizing his fellow judges for their adherence to that standard.
The letter points to Canon 3(A)(14) of the code, which applies to the conduct of the judge and the judge’s staff. That section states that judges, “…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.”
The letter to McCormack and Gleicher then states, “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.”
Jay Kaplan, staff attorney for the LGBT Project for the ACLU of Michigan, told the Michigan Advance that whatever Boonstra’s intentions, his language in the opinion conveyed a message that runs contrary to providing equal justice to all litigants that come through the court system.
“It certainly sends a message to the transgender community that they’re not to be treated with the same respect and dignity accorded to other litigants., he said, adding that he doesn’t like to use the terms preferred pronouns. “This is a fact for transgender people. There wouldn’t be any discussion or debate if we were talking about cisgender individuals. We see that often in the court where someone refers to somebody as ‘sir’ or ‘ma’am’ within a gender binary. So this shouldn’t be a matter of controversy for people who identify as transgender.”
In a response to the organizations writing the letter, McCormack called it “thorough, well-researched and obviously supported by an impressive range of organizations who care deeply about equality, equity and fair treatment of all.”
While not mentioning Boonstra by name, nor his opinion, McCormack indicated that she would ask the Michigan Judicial Institute and the state’s newly created Diversity, Equity and Inclusion Commission to follow up on the idea of cultural competency training for all judges and court staff.
Kaplan says while he and the others who signed onto the letter do believe Boonstra’s words were in violation of the Judicial Code of Conduct, he is more interested in this becoming a learning opportunity for the court system than any particular consequence for the judge.
“That’s up to other individuals if they wanted to file a complaint with the Judicial Tenure Commission,” said Kaplan. “We weren’t commenting on any of those things. But we were raising the issue that it is general judicial canon in Michigan that anyone who comes into the courtroom is to be treated with respect.”
This is not the first time Boonstra has drawn attention because of his strongly worded opinions. In 2020, he authored a 13-page letter attacking Michigan Democratic Gov. Gretchen Whitmer for her COVID-19 orders. In that letter, he quoted articles from far-right publications calling the governor a “dictator,” a “little tyrant” and claiming she has a “tyrannical soul.”
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