A federal judge rejected for the second time last week a complaint from a pair of lawyers about his courtroom policy on the use of pronouns, reiterating that the attorneys are — and have been — free to refer to transgender people as they wish.

“They’ve done so from the start. They’ve done so without sanction or admonishment from the Court. They’ve done so without the Court indicating they are doing anything ‘wrong’ or anyone else is doing anything ‘right,'” wrote U.S. District Court Judge S. Kato Crews in a May 1 order. “And yet, Plaintiffs continue to insist on snatching defeat from the jaws of victory on this issue of the use of pronouns in these proceedings.”

Crews is one of six judges on Colorado’s federal trial court using a common set of courtroom rules and policies, known as practice standards. Among other procedural guidelines, the standards encourage lawyers “to identify the applicable pronouns” of participants at the earliest point possible. If someone uses the wrong pronouns, “counsel are encouraged to bring that to the Court’s attention at the time, or through a subsequent email,” the standards read.

Previously, attorneys challenging a policy of the Mountain West Conference, a Colorado Springs-based collegiate athletic association, alleged they could not properly litigate their case thanks to Crews’ policy on pronouns.

The lawyers argued they believed in using male pronouns to refer to a trans female athlete who is a subject of their lawsuit. Further, they argued it violated their First Amendment right to free speech to compel them to say otherwise.

In a Feb. 24 order, Crews emphasized the lawyers can use whatever pronouns they wish, “so long as they remain respectful.”

“Ironically, it would appear Plaintiffs attempt to restrain and compel this Court’s speech to their preferred terms,” wrote Crews, an appointee of Joe Biden, who also declined to recuse himself from the case.

However, the plaintiffs’ attorneys, William Bock III and Justin R. Olson, maintained their view that Crews’ courtroom policy and willingness to refer to the trans female athlete using feminine pronouns had “chilled” them from speaking about her as a man. Moreover, it allegedly signaled Crews had already decided against them in their sex discrimination lawsuit challenging the Mountain West Conference’s policy for trans athletes.

“The Court’s publicly announced views on the use of pronouns confirm that the Court has a strongly held predetermined viewpoint, and that it is willing at least in some cases to enforce with onerous sanctions its view that sex is at least partly based upon, or reflective of, personal choice,” the attorneys wrote. “Therefore, it is ‘wrong’ (whether sanctionable in this case or not) for litigants to use pronouns different than those another person has chosen even if the pronouns are biologically accurate. This is quintessential actual bias.”

Bock and Olson asked Crews to permit them to appeal to the U.S. Court of Appeals for the 10th Circuit. Such mid-case, or interlocutory, appeals are allowed when they involve a “controlling question of law” that may “materially advance the ultimate termination of the litigation.”

The constitutionality of Crews’ courtroom rules, the lawyers argued, “is a controlling question of law.” And in the absence of 10th Circuit intervention, Crews, through his use of pronouns, has already determined the trans athlete “is legally entitled to be treated as a woman.”

The Mountain West Conference opposed asking the circuit to review Crews’ policy, noting the courtroom guidelines were not “law” nor had they generated any negative consequences for the plaintiffs’ attorneys when they appeared in Crews’ courtroom in November.

“Plaintiffs’ counsel referred to an allegedly transgender female athlete as a ‘biological male’ a total of 28 times throughout the course of the hearing, free of any correction or comment from the Court,” wrote the Mountain West Conference’s lawyers.

Crews agreed that his practice standards were not laws, regulations or constitutional provisions and would not affect the outcome of the lawsuit.

“Even were the Tenth Circuit to order rescission of the Decorum Standard, it would have no practical effect on these proceedings because the Court has allowed Plaintiffs to use the pronouns of their choice throughout this case,” he wrote.

Crews noted judges have “discretion over matters bearing on the speech used by lawyers or parties.” He pointed to a decision of the Boston-based First Circuit finding a judge appropriately told a criminal defendant to stop staring at the jury in a potentially intimidating manner.

Crews reiterated that the trans athlete “is entitled to be treated with the Court’s respect and courtesy in these proceedings,” and the plaintiffs’ attorneys are only recommended to refer to her using proper pronouns — not required to.

Crews concluded that he “encourages Plaintiffs to take ‘yes’ for an answer. … On this record, any purported ‘stigmas’ are self-inflicted.”

The case is Slusser et al. v. The Mountain West Conference et al.