Misgendering as Misconduct

Abstract

As litigation regarding the civil rights of transgender persons blossoms, a curious trend has emerged: In briefs, pleadings, and motions advocating anti-trans positions, attorneys have addressed trans parties with language at odds with their gender. Through a close review of the language in briefs for three recent Supreme Court cases, this Article exposes the extent to which intentional mis-attribution of gender has developed into a strategy to intimidate and harass transgender persons within the legal system.

Critically unaddressed by courts and legal scholarship, this Article argues that, because bar associations are best positioned to address discriminatory attorney behavior, the Rules of Professional Conduct have a central role to play in ending this practice. Specifically, the Article proposes that as objectively offensive conduct, mis-gendering might be addressed as attorney misconduct under Rule 3.4, which requires fair treatment of opposing parties and counsel; Rule 4.4, which protects the rights of third parties; and Rule 8.4, which prohibits conduct prejudicial to the administration of justice, as well as harassment or discrimination. From there, it closes by defending the proposal against the expected First Amendment counterarguments. Ultimately, the Article concludes that the Rules of Professional Conduct offer a practical and constitutionally permissible solution to attorney disparagement of transgender persons within their filings.