September 9, 2021
Digest: A judge may disclose the judge’s own preferred gender pronouns in the judge’s email signature block and during a virtual proceeding in which the judge presides.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(4); Opinions 21-81; 21-09; 09-151; 18-36; 17-179; 17-12.
A full-time judge asks if they may disclose their own preferred gender pronouns in the judge’s email signature block and orally during virtual proceedings in which the judge presides.1
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “perform judicial duties without bias or prejudice against or in favor of any person” (see 22 NYCRR 100.3[B]). For example, a judge must not, “by words or conduct, manifest bias or prejudice, including but not limited to bias and prejudice based upon ... sexual orientation, gender identity [or] gender expression” (id.).
Not only are judges ethically prohibited from manifesting bias or prejudice based on sexual orientation, gender identity or gender expression (see e.g. Opinion 21-09 [where a party or attorney has advised the court that their preferred gender pronoun is “they,” a judge may not require them to instead use “he” or “she”]), but in many circumstances, judges may affirmatively act to promote diversity and inclusion. For example, a judge may participate in a job fair as a representative of a not-for–profit organization in order to encourage members of the LGBT community to pursue careers as court officers and promote diversity in the court system (see Opinion 09-151); may join with officers of an ethnic bar association to meet with a district attorney-elect’s transition team to discuss increasing diversity at the district attorney’s office, provided there is no impermissible political activity and the judge does not recommend specific individuals be hired (see Opinion 17-179); and may “promote diversity by encouraging individuals from particular backgrounds to enter the legal profession” (see Opinion 17-12). A judge may also promote diversity in courtroom participation by including a statement in their part rules encouraging litigators to give their knowledgeable junior colleagues more speaking and leadership roles in their courtroom (see Opinion 18-36). Most recently, we advised a judge may vote on a judicial association’s proposed resolution not to hold the association’s conferences in locations where local laws adversely affect individuals with particular sexual orientations, gender identity, or gender expression, and need not resign from the association merely because the resolution passes (see Opinion 21-81).
Here, too, we conclude a judge may disclose the judge’s own preferred gender pronouns in the judge’s email signature block and during a virtual proceeding in which the judge presides.
1 Our use of “he/she” or singular “they” in an opinion is, as always, independent of the inquiring judge’s choice of pronoun(s).