By Miriam S. Edelstein, Esq.

On July 19, 2022, the New Jersey Supreme Court approved the New Jersey Judiciary Policy on Accessible & Inclusive Communications (Directive 07-22). This policy is the culmination of the Judiciary’s comprehensive review of all court communications (written and spoken) pursuant to the Supreme Court’s 2021 Action Plan for Ensuring Equal Justice, in which the Court committed to an ongoing effort for increased equitable access to information and services provided by the courts. 

The 2021 Action Plan sought to “improve procedural and substantive justice for everyone,” remove barriers from “racism and systemic disparities” and “improve equity for people of color, as well as for persons affected by mental health conditions, addiction, and the challenges associated with poverty.”

Those who work on diversity, equity and inclusion (“DE&I”) efforts, particularly in larger institutions and systems, may recognize that while the 2021 Action Plan offered lofty and laudable goals, it provided few specific plans to implement systemic change. 

Directive 07-22 is a major departure from merely aspirational language, and, instead, provides detailed and thoughtful guidance for court communications across every medium, focusing on improving accessibility, understandability and inclusivity.

Accessibility focuses on written information and resources, directing courts to maximize online content, increase its searchability and use formatting that is readable on smartphones and smaller devices as well as compatible with screen readers and other assistive technology for the visually impaired.

Understandability focuses on replacing formalistic legal terms and verbiage with “plain language” that is as clear for non-attorneys to understand as possible. Here, the Court recognizes the barriers this type of “legalese” creates in preventing “outsiders” from understanding court information without the benefit of a translator (i.e., an attorney). In addition, the Court acknowledges that the customary language passed down through our venerated legal institutions “sometimes has a problematic history.”

Inclusivity focuses on changing the gender-exclusionary language that permeates our traditional forms of addressing one another and often results in misgendering gender-diverse individuals, particularly when we only know an individual’s name. Under the new policy, the courts will not assume the gender identity of any participant, but rather, will only use gendered pronouns or honorifics if the specific individual affirmatively discloses their own gender identity. 

This policy’s shift to gender-inclusive language is a significant departure from traditional customs and stereotypes that continue to dominate our language and culture at large. Traditional gendered greetings and salutations (e.g., Dear Sir or Madam), by default, only recognize cisgender men and women (men and women who identify as the genders they were assigned at birth). This recognition, by failing to acknowledge any other gender, erases or ignores the existence of transgender, non-binary and gender non-conforming (“TNG”) individuals (those who identify as a different gender from the ones they were assigned at birth). The Court provides several examples and suggestions, such as replacing “[o]utdated gendered references” in such customary phrases as “ladies and gentlemen of the jury,” with the more inclusive phrase “members of the jury.”   

By making this policy the default for court communications, rather than one to be used on an ad hoc basis, the Court has moved towards establishing gender-inclusive language as the norm for discourse. Changing this norm will help remove the stigma of affirmatively identifying one’s gender, as, typically, only TNG individuals must make such an affirmative declaration. In addition, this change will reduce the misgendering of individuals which can result from assuming an individual’s gender identity based on stereotypical associations of names and appearances with traditional notions of the “male” and “female” gender binary. 

While this policy is directed towards court-generated communication only, it can serve as a catalyst for all of us to make our own practices more inclusive. Whether we are addressing a client, our own staff, colleagues, court personnel or simply meeting someone for the first time in any scenario, we risk misgendering them by relying merely on stereotypes for identifying gender.

Even if unintentional, misgendering a TNG individual can cause significant harm or distress, and, if done intentionally or repeatedly, can also result in legal liability under the New Jersey Law Against Discrimination.

Rather than perpetuate customs and habits which reinforce gender stereotypes with exclusionary language, we should use the Judiciary’s policy as a model to closely examine and reform our own communications, including form letters, templates and all other media.

Miriam S. Edelstein, Esq., is Counsel at Costello & Mains, LLC, focusing on plaintiff-side civil rights and employment litigation. As a member of the NJAJ Board of Governors, the Diversity, Equity & Inclusion Committee, the Education Committee, the Civil Rights Committee and the Women Trial Lawyers Caucus. She regularly presents on issues in employment law, civil litigation as well as topics in DE&I.  She can be reached at medelstein@costellomains.com or at 856-727-9700.