Court of Appeal:
To Defendant Over Protests Not Reversible
By a MetNews Staff Writer
A prosecutor was remiss in referring to a defendant repeatedly as “she” despite the person’s identification as a male, Div. Three of the First District Court of Appeal has declared, but declined to reverse the convictions, holding that the “misgendering” was, under the circumstances, harmless.
It was the third time a California appellate court has utilized that term, which is one of recent vintage.
Justice Victor Rodriguez wrote the opinion, filed late Monday. It affirms convictions of Jasmine Mareza Zarazua on all charges: willfully resisting a peace officer in the discharge of a duty, recklessly evading an officer in a vehicle while attempting to escape, hit and run driving causing property damage, and driving with a suspended license.
Zarazua argued for reversal based on Solano Deputy District Attorney William Moser’s use of female pronouns over the protest of the defense and Solano Superior Court Judge Jeffrey C. Kauffman’s denial of the request by the deputy public defender for a curative instruction.
When the proceedings began, Zarazua identified as a female but that had changed when the trial commenced.
“Parties are to be treated with respect, courtesy, and dignity—including the use of preferred pronouns. Failure to do so offends the administration of justice. Nevertheless, given the record here, we conclude any misconduct was not prejudicial and therefore affirm.”
He went on to elaborate:
“[W]e emphasize that we do not condone the prosecutor’s repeated misgendering of Zarazua. Moreover, we note trial courts have an obligation to ensure litigants and attorneys are treated with respect, courtesy, and dignity —including the use of preferred pronouns. When court proceedings fall short of that, judges should take affirmative steps to address the issue. Nevertheless, on this record, we conclude the prosecutor’s failure to use masculine pronouns was not prejudicial.”
He remarked that “there may be instances when misgendering is so overt, malicious, and calculating” as to offend due process, but declared that “this is not such a case.”
The misgendering was harmless, he explained, given that “the evidence of guilt was overwhelming and largely uncontested” and in light of prospective jurors’ assurances that gender identity would not affect their decisions and Kaufman having given an instruction that verdicts not be based on bias.
In a footnote, Rodriguez defined “misgendering”—quoting a 2021 California Law Review article—as “the assignment of a gender with which a party does not identify, through the misuse of gendered pronouns, titles, names, and honorifics.”
The Third District Court of Appeal, in its July 16, 2021 decision in Taking Offense v. State, cited a 2019 Pennsylvania law review article in saying that “ ‘[m]isgender’ refers to the systematic misuse of one’s preferred pronouns by another.”
In that case, the court invalidated as unconstitutional a statute rendering it unlawful for an employee at a long-term care facility to “[w]illfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.” The California Supreme Court has granted review.
The first California appellate decision utilizing the term was handed down by the First District’s Div. One. In its Jan. 22, 2021 opinion in Murphy v. Twitter, Inc., it affirmed a judgment of dismissal of an action against Twitter challenging its policy banning “misgendering” in tweets, with the court holding that the federal Communications Decency Act barred the lawsuit.
In that case, the term was not defined though its meaning was clear from the context.
Several U.S. District Court rulings in California have employed the word.
Monday’s decision comes in People v. Zarazua, 2022 S.O.S. 5774.
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