The Law Society of B.C. has released the Second Meeting Notice for the 2021 Annual General Meeting, which is being held virtually on October 5, 2021. All practising lawyers in B.C. have the option to vote on the resolutions through advance voting prior to the AGM, or by attending the AGM.
Resolution 1 is a "Member Resolution to Solicit the Membership's Commitment to Open Debate on Practice Directive 59 and Notice to Profession 24 (re Gender Pronouns)". The full text can be found here.
It is the position of CBABC that Resolution 1 is contrary to our mission and values and should be voted down at the Law Society's AGM. As demonstrated in the whereas clauses, this is not a benign resolution on the merits of open debate. It is an attack on the principles that underpin the Practice Directives: that transgender and non-binary people exist and deserve equal respect and dignity when interacting with our justice system.
We encourage CBABC members to consider the following arguments against the resolution and to review CBABC's resources and previous commentary on this issue.
Free Speech is Not Without Limits
The right to free speech and open debate is not without limits.
Hate speech, incitement to riot and uttering threats are all crimes. Defamatory and discriminatory speech is limited by tort law and human rights codes. Addressing counsel and parties without basic courtesy and civility, such as failing to use the pronouns they identify, is prohibited by the Code of Professional Conduct.
Not all subjects are open to debate in modern society, nor should they be. There is no inherent value to a debate about whether the practice of slavery should be revived or is legally defensible, or whether genocide is good or legally defensible, or whether women or people of colour should be admitted to practice law in B.C.
Similarly, the human rights of transgender people, including non-binary people1, and their right to be treated with basic courtesy and civility should not be up for debate.
Denying the Existence of Transgender People
Resolution 1 effectively calls upon Law Society members to affirm the right to debate the existence of transgender people. The rights of transgender persons to equality and dignity are not open to debate — they are a matter of settled law.
The rights to gender identity and expression are protected by the Canadian Charter of Rights and Freedoms2. Courts and human rights bodies across the country have long held (in decisions dating back to at least 2004) that people involved in a court or administrative proceeding are entitled to have their gender identity respected throughout the process.
Refusal to acknowledge the existence and rights of transgender people, or that their identity is a reality beyond "preference", is a violation of their dignity and a form of gender-based violence.
Access to Justice for Transgender People
Transgender people have a higher rate of justiciable legal problems, yet lower trust in and access to the legal system3. Significant contributing factors to this are ongoing transphobia, misgendering and its associated harms. Being able to work with a transgender lawyer and feeling safe in a courtroom are two steps that can help these clients.
Similarly, transgender lawyers face barriers to practice that negatively impact their experience as lawyers and access to justice for their clients. Transgender lawyers are misgendered almost daily, including when they are in court and the courthouse.
When misgendering happens to a transgender lawyer in court, they must decide whether to correct the misgendering or let it stand, sacrificing either their submissions or their dignity. Being misgendered in court, whether by the judge or by other counsel, signals to a transgender lawyer that there is no place for them. The stress and pain of this public and professional indignity is an added gender-specific career impediment and a disincentive to practice law, particularly litigation.
When misgendering happens to a transgender witness or party, it signals that their identity may not be recognized and accorded equal dignity and respect in the courtroom setting. Misgendering contributes to the significant barriers to access to justice encountered by transgender people, including rarely obtaining legal assistance for their justiciable legal problems.
The courts’ Practice Directives are a simple solution aimed at ameliorating these problems. All participants in the justice system should feel safe and be able to focus on the issues to be decided in the courtroom. This is an important part of access to justice.
Conclusion
CBABC takes this exceptional step of commenting on Resolution 1 because our mission includes promoting equality, diversity and inclusiveness in the legal profession and the justice system; improving and promoting access to justice; and improving the administration of justice. Resolution 1 offends those principles and fails to recognize appropriate limits on free speech and open debate to respect human rights and protect people from discrimination.
Clare Jennings
CBABC President 2021/22
- Hereafter, the term “transgender” is inclusive of non-binary people. | ↩
- Although not explicitly listed, courts have held that transgender status is protected under the ground of ‘sex’. | ↩
- TRANSforming Justice: Trans Legal Needs Assessment Ontario, Summary Report One: Legal Problems Facing Trans People in Ontario” (September 2018), online: HIV & AIDS Legal Clinic Ontario (HALCO) at 2-3. | ↩