This addition to the Preamble to the Code of Professional Responsibility should be rejected.
SEXUAL ORIENTATION, GENDER IDENTITY and MARITAL STATUS
The Bar Council has recommended to you a change to the Preamble.
(6) The North Carolina Constitution requires that “right and justice shall be administered without favor, denial, or delay.” Public confidence in the justice system is strengthened when all participants are treated equally, fairly, honestly, and respectfully within the system. A lawyer, as a representative of and crucial contributor to the justice system, should foster public confidence in the administration of justice by treating all persons they encounter in their professional capacity equally, courteously, respectfully, and with dignity regardless of a person’s race, sex, national origin, religion, age, disability, sexual orientation, gender identity, marital status, or socioeconomic status.
Significant problems are presented. I am not concerned that I will be disciplined as an attorney. I am concerned that someone could plausibly call me an unethical attorney under this language. I have enjoyed “av” ratings forever.
SEXUAL ORIENTATION
This term has no commonly understood meaning. There are several dozen sexual orientations. Is an attorney unethical if (s)he/they does not hire, promote, retain or represent someone who is a member of the NAMBLA (North American Man Boy Love Association)? Is the attorney unethical if the attorney does not hire as a partner/associate, or does not represent a person who says that he/she/they engages in sadomasochism? Is an attorney unethical if the attorney speaks out publicly in a legal context against polygamy, bigamy, or adultery?
It was recently reported that three “polyamorous” men had become a “throuple” and would be raising two female infants born through surrogates. https://apple.news/A4Py2t03NQOaduKkyAmFM2Q
NEW SEXUAL ORIENTATIONS ARE DISCOVERED REGULARLY
Would it be unethical if an attorney let a client, employee or partner know that (s)he/they does not respect adultery of any type? Since bisexuality or pansexuality, by definition, includes adultery, the same question arises.
GENDER IDENTITY
“Gender Identity” is not defined or even definable. Is it the same as “gender expression” found in some states, once in our General Statutes, and all over the internet? Is “identity” intended as subjective or objective? The Obama and Biden administrations, and a few courts, say it is purely subjective – no medical treatment or evidence is required. Facebook allows an unlimited number of self-identities of gender. 70 such identities had been previously denominated. Has an attorney discriminated by not accepting at face value a person’s subjective gender identity that is not consistent with that person’s biology?
Notwithstanding Justice Gorsuch in Bostock, “gender” is defined in Fowler’s Dictionary of Modern English Usage (2nd Ed, Oxford Press, 1965) (the same year as the Civil Rights Act of 1965) as:
“gender, n., is a grammatical term only. To talk of persons or creatures of the masculine or feminine g., meaning of the male or female sex, is either a jocularity (permissible or not according to context) or a blunder.”
In other words, the author of Bostock was either kidding or made a serious blunder in his textual analysis. Bostock disclaims the application of its definition of “sex” to anything other than Title VII.
Has an attorney disrespected a “trans person” by using standard English pronouns, either intentionally or not? “A Guide to Gender Identity Terms” may be helpful to understand the “zeitgeist” of today’s culture. https://apple.news/AUjr4s7FMR0OGWIcAXE_gdQ
NEW GENDER IDENTITIES ARE DISCOVERED REGULARLY
The court may find it difficult to believe that some will be offended and/or sue if one uses a pronoun that is not to their liking when one refers to “s(he)” or “them”.
Like many smaller firms, ours has two restrooms. One is labeled for the use of men, one is labeled for women. The state building code requires separate restrooms. In 45 years of practice I have never had occasion or desire to direct who goes where. Have I discriminated if I ask, or require biological males who, even if only that day, have decided to identify as female, to use the private space designated for men?
How does an attorney avoid creating a hostile work environment if the attorney allows non-biological subjective identities to determine the operations of the office? The female attorneys or other staff may not appreciate my defense that I was only trying to respect the Preamble.
Have I unethically discriminated if an applicant for a position with my firm tells me, shows me via social media or by resume, that “(s)he” or “they” is a biological male who won various sports events while subjectively identifying as a female, and I do not hire, or thereafter promote, or retain that person.
MARITAL STATUS
An otherwise qualified male applicant wants me to hire him. He lives with and is married to a woman by whom he has three children. With or without her knowledge he tells me (or others tell me) that he also uses Saturdays to have indiscriminate sex with men in another city. Am I really ethically bound to hire, promote, or retain a person with a bisexual orientation and a marital status that would be unacceptable to me and to my other clients and community.
OTHER CONSIDERATIONS
The Council could have avoided these questions by simply saying that an attorney should appropriately respect everyone. If it insists on a list, it should include “color” and “caste”. “Color” is actually in the statutes and is a very real source of actual discrimination. “Caste” is becoming more relevant as a source of actual discrimination. The list should not include the three described above.
I asked these same questions of the Ethics Committee and of the State Bar Council. I received no response at all.
Sincerely,
Paul Stam
