An interview with Commissioner Jonathan Lack on the 2022 update to the Washington CJC that mandates correct pronoun usage and its effects in the courtroom
By Aron Reynolds, Billy Hinman, Haojie Chen, Bryan Hernandez, Wyatt Huang, and Demarco Acosta, University of Washington Bothell School of Business
King County Superior Court Commissioner Jonathan Lack gave a warm, welcoming smile as we each entered our class Zoom room, and cheerfully greeted us while shuffling the huge stack of papers on his desk. Lack had been working at the courthouse since early in the morning. Yet he was sitting up straight and sipping from his enormous canteen of coffee at 5:45 in the evening, indicating that he had a long night of work ahead of him.
Although his day was likely very stressful and busy, Lack’s demeanor remained bright and gregarious. When he waited for the rest of the class to sign in and the interview to start, he told us that he signed in early because he often focuses too much on his work, and he might lose track of time and forget about the interview. “Just scream at me to get my attention when you’re ready to start!” he said cheerily.
We were excited to learn more from him about the pivotal update to the code of judicial conduct in Washington State that he authored, proposed, and passed in the Washington State Supreme Court that mandates judicial officers refer to parties by their correct pronouns.
Since the passing of the new rule of Judicial Conduct, have there been any opposing comments from your peers? How do you address any opposition?
JL: I have been a commissioner in King County for four years. I was also [a] commissioner for almost six years in Thurston County, down in Olympia. But before that, I was on the bench for almost six years in Anchorage, Alaska as a superior court master. [At the time], the Alaska Code of judicial conduct in the Alaska bar rules didn’t provide any protections for LGBTQ folks at all. And I said, “Hey, I think this is something that needs to be included.” And the answer was, “It’s not worth your time. It’s never going to get anywhere. And even if the court passed it, the legislature would overturn it. So go find someplace else to focus.”
And so I did. I moved to Washington.
Lack went on to explain the historical context of moving to Washington State a decade ago right just prior to the landmark Obergefell v. Hodges decision, which legalized same sex marriage on a national scale, and the impact that it had on the attitudes of his judicial colleagues.
I’ve gotten pushback from [other judges outside of Washington]. I do a lot of training nationwide, and some of these trainings are mandatory for judicial officers. And we get some judicial officers who [say], “You know, I don’t believe in it [protections for LGBTQ parties in courtrooms].”
When I first got on the bench in Thurston County, the 2012 election also included same-sex marriage in Washington State had just occurred. And right after I got hired, I found out that one of the judges there had refused to do gay marriages, because he didn’t believe it was legit, and that it would be a sin for him to do that. […] It was kind of horrifying for me. I didn’t have much interaction with this judicial officer, but he was sanctioned by the State Judicial Conduct Commission for his behavior.
I will also say that [post Washington Judicial Conduct rule change], I get questions from well-intended judges who are asking me, “How do I deal with this issue? How do I deal with that issue?” And they ask the questions, and I can sense that there’s some resistance, but I also would say those folks […] are trying to figure out how to get it right, even though they may personally be opposed to something. There’s all kinds of [personal] beliefs that I have. There’s all kinds of [personal] convictions that I have and they have no bearing on what I do as a judicial officer. We have to set our [personal] convictions aside [to uphold the law], and that’s part of the job.
I remember seeing that you did workshops for people to help them learn how to adapt to using correct pronouns. Have you noticed any changes in people’s views since doing that?
JL: Judges aren’t allowed to express their [personal] views, so I don’t know if anybody’s changed their views. I think some have changed their behavior, which would indicate that at least, maybe their views haven’t changed, but their behavior has changed. In terms of attorneys, I would say, attorneys want to please the court. And what they believe or don’t believe is irrelevant. But if they know they’re going to piss me off by misgendering somebody, it’s probably not [in] their client’s best interest, so they’re not going to do it.
This [the following] is a common scenario [in court]. A husband and wife are married. The husband says, “You know I’ve been dealing with this struggle for years, and I want to tell you that I feel like I’m a woman, and I’m going to transition.” And so there’s a divorce. [In court], we have 2 people that identify as female in the court proceedings. The first paragraph in their [transgender litigant’s] paperwork says, “Bill Jones” now identifies as “Susie Jones” and uses she/her pronouns, then [the attorney] proceeds to misgender the person through their 5 minute argument. I had to correct him […] 3 or 4 times. And it’s [sometimes] just the function of not paying attention and not thinking. And maybe it’s nerves in the courtroom.
I’ve had cases where I’ve got a report from a social worker who tells me that […] little “Johnny” [he/him pronouns previously] is now little “Susie”, and uses she/her pronouns, and then proceeds to refer to “Susie” as he/him throughout the rest of the report. I think [here] it’s just a function of lots of work, lots of burden on social workers and caseloads.
Why are you insistent on using the correct pronouns for transgender individuals during court?
JL: I’ve been insisting on it because now it’s the law, the code of judicial conduct was amended last September to include gender expression and gender identity as protected from bias and discrimination by the courts. And the Washington rule is identical to the New York code of judicial conduct, which it was “plagiarized” from.
The New York State Judicial Conduct Commission issued a ruling about a year and a half ago. At this point, saying that essentially misgendering people in the courtroom was a violation of that code of judicial conduct. And now the Washington code of judicial conduct, mirrors that, and so it’s a violation of the [Washington State judicial] code. If I misgender somebody in the courtroom and don’t respect their gender and what-not, then I have violated the code of judicial conduct.
I think it makes a difference, because all the data that we know about affirming young people, particularly in their gender identity, means that they are going to do better in school. They’re going to do better in their social relationships. They’re going to be less likely to be homeless or in foster care. They’re less likely to have ongoing mental health and physical health issues because of the trauma that’s associated with being misgendered and essentially bullied and the trauma that’s associated with that. They’re just going to do better. They’re going to be more involved, productive members of society if we respect them.
In the setting of court, how does misidentifying a person’s gender affect their mental health?
JL: It’s hard for me to say how something affects other people [as someone who isn’t transgender]. I know how it affects me when I’ve been called all kinds of things by people. One situation that I must deal with is people often don’t like my rulings, and they might say things that are negative. I’ve been called certain things while on the bench and as a judicial officer. I have had people storm out of my [court]room, calling me various derogatory names for gay people, and I know how that makes me feel.
I have a number of trans and non-binary friends. My first case that involved somebody who was transgender in my courtroom was probably about 14 years ago. It was a name change, and she came into my courtroom asking to change her birth name to her chosen name. And she also asked if I could change her gender identifier on her driver’s license, and it just wasn’t something that I had ever contemplated before. And I [said], “Absolutely not. I have no authority to do that!” And I shot her down. She cried in the courtroom […] I think that was probably one of my worst days as a judicial officer where I got it wrong. I should have said it in a different way [regardless of whether I had the authority to grant her request]..
Most of the cases that I deal with in terms of folks that are either non-binary or transgender at this point [involve] young people. They’re generally between the ages of 12-17, and what I’ve noticed from the bulk of them is that I may be the first person of authority in their mind who acknowledges them for who they are. Oftentimes, this happens in front of a parent who is hostile to the idea, or at best uncomfortable but is trying to do their best. I think it [having an affirming authority figure] empowers a lot of young people.
As the first person of authority to say, “You are who you tell me you are, and I value who you are, I value your name, I value your professed gender, and I take you at face value, and I honor that,” is huge for them. A lot of these kids are suicidal. A lot of them are cutting. They’re self-medicating because of depression with drugs or alcohol. They may have parents who they believe don’t love them, so they’re looking for love in literally all the wrong places. There are some [homeless] who are prostituting themselves to get by. It’s just really sad. To be told that you’re loved and appreciated and valued for who you are without having to give anything creates value for them [trans youth], and keeps them from killing themselves.
How do you think this rule will affect the experience of transgender people in the courtroom?
JL: [As a comparison], if I know there will be people on my calendar whose primary language is not English, I always go on Google Translate [before the hearing]. I learned how to say hello in their language, so that way the first thing I say to them is […] whatever their words [for hello in their primary language] are. And just that little bit of comfort makes a huge difference. It allows people to relax. It allows people to be their true selves in court. And I think it allows them to participate in the court process better. And [by comparison], if we can make transgender folks and non-binary folks feel welcome, that they’re coming into a place that’s not hostile [for them], then they’re going to experience less trauma. And ideally, the court is going to give families, particularly with children, better results.
Commissioner Lack is willing to spend time learning new languages to make those who appear before him in court feel more comfortable. A small gesture of saying hello or correctly identifying someone’s gender can be transformational. If someone is as busy as Commissioner Lack who can make time for this and then make time to sit for an interview at the end of a long day at work, then we can all find time to make our world more accepting of others.
This interview has been condensed for content and clarity
For further information, here is a link to Commissioner Lack’s response to the editor of the Washington State Bar News on using correct pronouns for transgender individuals in a professional setting.
For reference to the Washington change in rule for judges regarding correct pronoun usage, see here.