This article was originally published by The Lawyer’s Daily (thelawyersdaily.ca), part of LexisNexis Canada Inc.
By Brad Regehr, CBA President & Jennifer Brun, CBABC President
The rights of transgender and non-binary persons to equality and dignity are not open to debate — they are a matter of law.
The rights to gender identity and expression are enshrined in the Canadian Charter of Rights and Freedoms. Courts and human rights bodies across the country are on record in decisions dating back to at least 2004 as respecting the correct pronouns of trans people.
B.C.’s new practice directives in its Supreme Court and provincial courts, far from being an inappropriate exercise in “social justice activism,” merely follow this trend of gender identity-conscious legal decisions.
We live in times where courts, like all institutions, need to be mindful of the social justice concerns of the people they serve. B.C. courts should be lauded for their active efforts to consult with groups representing marginalized communities, such as the Canadian Bar Association B.C. Branch’s Sexual Orientation and Gender Identity Conference and its LGBTQ2S+ caucus. These groups have been instrumental in sharing how court practices can negatively affect these communities.
In the past, court participants often made false assumptions about gender based on factors such as name, appearance and voice. These false assumptions put trans and non-binary people into a double bind. They could either ignore the misgendering and suffer indignity, distress and an alarming reminder that they may not be given equal respect in our justice system, or they correct the misgendering in the middle of a court proceeding and risk attracting negative reactions while detracting from the legal matters at hand.
With the new practice directives, correct titles and pronouns are clarified at the outset. It has been argued that this requirement itself puts trans and non-binary people in the position of having to declare themselves even if they’re not comfortable doing so, which is not the case. If they wish, individuals can choose the titles and pronouns least likely to expose their trans or non-binary status in order to protect themselves from the rampant transphobia and discrimination that still exists in society.
The new practice directives provide a common sense solution to the chronic problem of misgendering trans and non‑binary court participants. Prescribing a simple, consistent practice whereby participants note their title and pronouns at the start of a legal proceeding prevents unnecessary assumptions, confusion, psychological harm and discomfort that can result from even unintentional misgendering.
This new practice also benefits cisgender persons. In an age where legal proceedings are increasingly online or via phone, the potential for misgendering based solely on voice arises. Plus, many court participants have names traditionally associated with male and female genders or names not commonly recognized by unilingual English speakers. Proactive clarification prevents misgendering in those circumstances as well.
These directives are not the first time that courts have grappled with respecting contemporary requirements for gender inclusive language. As women entered the profession in greater numbers, lawyers had to switch from language like “my learned brother” to “my learned friend.” They adapted to using Ms. to address women lawyers who did not wish to be known by their marital status. The sky did not fall after those changes, and it won’t as a result of B.C. courts’ new directives.
Imagine going through your everyday life with others constantly referring to you by the wrong gender. That is the continued reality of trans and non-binary persons today. The B.C. courts’ new approach is part of the wider necessary societal response to preventing and correcting that harm. It’s time for courts elsewhere in Canada to follow B.C.’s common sense lead and implement similar practice directives to promote equal access to justice.