One member of Colorado’s second-highest court told attorneys on Wednesday that state law and the principles of the legal profession require them to be respectful of others’ gender identities, notwithstanding the inevitable mistakes that are made in good faith.

“I will be the first to tell you the legal system has a long way to go to catch up on this. We have inmates in the Department of Corrections who go by names different than what they were convicted under,” said Judge Ted C. Tow III of the Court of Appeals. In those instances, however, Tow said he has to issue an opinion under the legal name, otherwise the person will never receive it.

“We have a lot of areas to grow and to learn how to deal with these issues as a system,” he added.

Tow delivered an online presentation with Hayden DePorter, an employment attorney and former Court of Appeals clerk. They walked through the differences between sexual orientation, gender identity and the protections Colorado law affords those characteristics.

“In your practice, this is gonna come up at some point almost for sure for you: You are representing someone or you are cross-examining someone who uses a particular pronoun that you might not have expected or is different from your initial thought,” said Tow. “If you learn someone uses a pronoun, you have to use it. If you intentionally misuse it — if you refuse to acknowledge their identity — that is a violation of CADA,” meaning the Colorado Anti-Discrimination Act.

He elaborated that lawyers in a courtroom setting may avoid using a person’s chosen name or their pronouns for a variety of reasons. But such behavior, he said, could run afoul of the rules of professional conduct, meaning judges should intervene.

“The concepts of equity, diversity and inclusivity are not new. They are part of your oath when you became a lawyer,” Tow said.

The presentation occurred on the same day the U.S. Supreme Court heard arguments in a case questioning whether states may bar transgender children from receiving gender-affirming treatments. The first openly trans attorney to appear in front of the nation’s highest court argued for the challengers.

DePorter noted anti-trans sentiment has also endangered “cisgender” women, meaning those whose biological sex is the same as the gender they identify with. 

“There’s been quite a few articles coming out about cisgender women being attacked in the bathroom because they don’t look ‘woman enough’ and they look like ‘a man,'” DePorter said.

Tow said that when it comes to gender identity, neither language nor customs are fixed forever. In the Founding era, for example, male attire included “makeup, boots with heels, frilly shirts and wigs,” Tow said.

Similarly, legal language has evolved, with “his” giving way to “his or hers.” Tow said even that development is “underinclusive.”

“You will see numerous Court of Appeals decisions that use ‘they’ as a generic singular. We don’t drop a footnote and call attention to it. We just do it,” he said.

“Not all of the judges are comfortable doing it yet,” Tow continued. To the extent that using “they” could cause confusion for the reader, “you write around that. You figure out how to make it clear. It just isn’t something to be scared of.”

The presenters recommended making a practice of asking for others’ pronouns, and not doing so only when a person’s gender identity appears ambiguous. They said mistakes will happen and the best remedy is to apologize and promise to do better.

“I’m not perfect either. I misgender people, too,” said DePorter. “This current group of youth is growing up where it is common to use they/them pronouns.”

Tow raised the scenario of an attorney representing a client in a family law case who may wish to refer to their child differently than how the child identifies. In that instance, Tow said, honoring the parent’s beliefs — as far as the law is concerned — would be discriminatory.

“When I started my practice in Chicago, I was a labor lawyer,” he said. “I represented a lot of clients throughout the mid- and Deep South. I cannot count the number of ‘Bubbas’ that I had contact with. I guarantee you, for only a very small handful of them that was their given name. I never questioned calling them ‘Bubba’ because that’s how they introduced themselves.”

Tow said even he encounters people who try to call him by something other than his given name — Ted.

“I will never understand the resistance to just meeting someone where they are,” he said. “To addressing them the way they wish to be addressed.”

The presentation was sponsored by the Faculty of Federal Advocates.