Lawyers challenging a collegiate athletic association’s policy regarding transgender participants have asked a federal judge to recuse himself from handling the case because of his courtroom protocols requiring people to use the appropriate pronouns when referring to others.

U.S. District Court Judge S. Kato Crews, an appointee of Joe Biden, has adopted practice standards addressing courtroom procedures just like his counterparts on the federal trial court. Although the standards focus largely on mundane procedural and formatting issues, the plaintiffs suing the Colorado Springs-based Mountain West Conference took issue with one of Crews’ requirements.

Attorneys are “invited and encouraged to identify the applicable pronouns of counsel, litigants, and witnesses at the earliest juncture possible,” and to refer to people using their appropriate titles and pronouns. If someone uses the wrong pronoun, “counsel are encouraged to bring that to the Court’s attention,” read the practice standards for civil cases.

“Counsel cannot use pronouns inconsistent with biological sex,” plaintiffs’ attorney William Bock III wrote in a Feb. 18 motion to Crews. “I am concerned that the Court’s (standards) could subject me to sanctions merely for adhering to my personal beliefs and for zealously advocating on behalf of my clients.”

Bock and co-counsel Justin R. Olson are suing the Mountain West Conference, which is a private membership organization of universities in Colorado and eight other western states, over a policy in existence since August 2022 allowing for the participation of trans athletes. If a school refuses to compete against another team because of a trans player, the refusing team will have a loss recorded against them.

In his motion, Bock alleged the issue before Crews is whether “anyone who identifies with the opposite sex becomes a member of that sex.” Bock claimed Crews’ practice standards violate his First Amendment right to free speech and that Crews has effectively “prejudged” the case by recognizing the existence of trans athletes.

However, attorneys and judges who reviewed Bock’s request believed his arguments have little chance of succeeding.

“Judges can regulate speech in their courtrooms to effectuate the fair administration of justice. Here, the rule is plainly designed to require lawyers and litigants to treat each other with civility and respect during court proceedings,” said Ashley I. Kissinger, a First Amendment lawyer. “This is a legitimate regulation of speech that is likely to pass constitutional muster.”

Jeremy Fogel, a retired federal judge from the Northern District of California and executive director of the Berkeley Judicial Institute, was unaware of any court case or judicial guidance addressing a similar situation. Were Crews to adopt a policy requiring courtroom participants to refer to others using their sex assigned at birth, Fogel said, that would likely draw an objection, too.

“The policy at issue here obviously is a restriction on speech, but so are many other rules that regulate courtroom behavior,” he said. “The question on appeal would be whether this particular restriction is a reasonable exercise of the trial court’s discretion to manage the proceedings before it. Again, judges typically get the benefit of the doubt in this area, but in the current environment I wouldn’t want to guess at the outcome.”

Crews previously denied the plaintiffs a preliminary injunction, which they requested shortly before a November volleyball tournament. The injunction would have immediately removed a trans player from San José State University’s women’s team and recalculated the tournament eligibility, among other things. The U.S. Court of Appeals for the 10th Circuit declined to overturn Crews’ decision.

Bock’s motion repeatedly referred to the trans athlete using masculine pronouns and the title “Mr.,” and cited President Donald Trump’s recent executive order stating that gender identity “does not provide a meaningful basis for identification.”

The motion asked Crews to “rescind” the portion of his courtroom protocols requiring the use of applicable pronouns. Further, it asked Crews to recuse himself and that the lawsuit be assigned to another judge who has not adopted the rule.

Practically speaking, however, there would only be a limited pool of judges to hear the case. Upon his appointment in 2024, Crews adopted the same set of uniform practice standards used by Biden’s four other appointees to Colorado’s U.S. District Court. Christine M. Arguello, a George W. Bush appointee, also uses the same protocols.

The two remaining active judges, Bush appointee Philip A. Brimmer and Trump appointee Daniel D. Domenico, do not have similar language in their protocols. Neither do a handful of senior judges who are semi-retired but still handle cases.

“I think the motion to recuse has little chance of success. Requiring lawyers and witnesses to exercise decorum and be polite in the courtroom does not reflect a bias from the judge at all, let alone one warranting recusal,” said John M. McHugh, an LGBTQ rights attorney. “These kinds of practice standards are very common across a wide spectrum of judges.”

Angela R. Arkin, a retired trial judge from the previously configured 18th Judicial District, had no comment on the motion, but she said with “a resounding ‘yes’” that she would adopt a similar courtroom protocol were she still on the bench. Arkin pointed to the provision of Colorado’s Code of Judicial Conduct requiring judges to ensure lawyers do not harass or discriminate on the basis of gender, sex or sexual orientation.

The Mountain West Conference has not responded to the recusal motion. Bock indicated the defendants have taken no position on the request to rescind the pronoun requirements, but that they oppose Crews’ recusal.

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