Canadian Lawyer Correspondence

British Columbia’s practice directions on preferred gender pronouns in court are problematic

These requirements raise issues of compelled speech, privacy rights and judicial impartiality

By Shahdin Farsai
OPINION 05 Feb 2021

On December 16, 2020, both the BC Supreme and Provincial courts issued practice directions to lawyers that require parties and/or lawyers to state their preferred gender pronouns at the beginning of all court proceedings, which are “to be used” by all participants appearing before the courts including judges.
My antennas naturally went up as a lawyer. I see these practice directions as problematic for three central reasons. They are potentially compelled speech in court, a breach of privacy rights, and damage the perception of judicial impartiality.

Compelled speech

Practice directions do not have the force of law as do formal enactments and court rules, but they express the view of the court regarding matters of practice and procedure. Litigants and practitioners are expected to comply with them or show good reason for doing otherwise. Nevertheless, the directive employs mandatory language that implies that other court participants must employ someone´s preferred pronoun when referring to them in the third person in court. Outside of court, we have legislation to protect gender identity or expression in the BC Human Rights Code, but inside court all parties are protected by absolute privilege or immunity. This doctrine shields the legal process from itself becoming the source of further litigation. No one can dictate the words spoken or written by court participants including judges during judicial proceedings. The doctrine is essential to the administration of justice because it permits parties to give evidence in whatever words they choose and lawyers to protect and present their client´s case unfettered.

The doctrine of absolute immunity goes hand in hand with lawyers’ professional duty to zealously protect their client’s rights. Advocates must not be under any obligation to refer to another party by their preferred pronouns, especially if doing so would go against the legal position and the instructions that they receive from their clients. This point was made in a recent case before the BC Supreme Court. The court heard the case of a mother attempting to prevent her 17-year-old daughter from having surgery to remove her breasts. The daughter wanted to transition to the male gender, and provincial authorities supported her wish. The mother still regarded her daughter as a female. The question of her gender transition was the very issue before the court. Yet when the mother and her counsel referred to the daughter as “her”, the judge challenged the mother´s right to do so. According to the transcript, the judge said, “there has been a request that counsel refer to [the youth] as he or him … are you refusing to do that?”

If a judge asks a lawyer, party or witness to use another’s preferred pronouns in court like that, the request could be misunderstood as a demand — that is, a court order. This would lead to fear of being in contempt of court or being hauled before the law society for conduct unbecoming. What happens if a judge equates malice and insult from pronoun use accurately based on biological sex (as opposed to preferred pronouns) and threatens a charge of contempt?

I turn to a UK example to illustrate the point. In the UK, they have a similar pronoun practice direction. Recently, a complainant of an assault was repeatedly told by a judge to refer to her assailant using the female pronouns, when he was, in fact, a biological male. The judge is reported to have described the complainant´s pronoun infractions as “bad grace” when explaining his reasons for not awarding her financial compensation for the assault (although he could have done so). Sadly, the court compelled her to describe her evidence under oath in a way that hid reality instead of revealing the truth and to add insult to injury she was denied rightful legal compensation. My worry is that such a development could occur in BC given the new directive.

Privacy rights

For privacy rights, not everyone wishes to have their pronouns — and thus their gender identity or expression — announced in public. Asking for pronouns is akin to “outing” someone publicly, conceivably against their will. The question potentially reveals their personal beliefs about themselves, and indirectly perhaps, their sexual orientation. This arguably constitutes a privacy breach. The question is and ought to be irrelevant to the court proceedings.
Judicial impartiality

Finally, preferred gender pronouns are unavoidably controversial and they are not universally accepted. They are part of a larger socio-cultural and legal debate over subjective gender identity versus objective sex — that is, as a biological reality that conforms to scientific evidence. So, when the court shields one type of participant from being offended by the innocent, objective, and correct use of the English language, questions of favouritism inevitably arise.

This point is eloquently put by Judge Stuart Kyle Duncan in United States of America vs. Varner, Court of Appeals for the Fifth Circuit, January 15, 2020 at p. 8-9, “…if a court were to compel the use of particular pronouns at the invitation of litigants, it could raise delicate questions about judicial impartiality…the court may unintentionally convey its tacit approval of the litigant’s underlying legal position. Even this appearance of bias, whether real or not, should be avoided.”

Where truth and courtesy conflict, the court cannot subordinate truth to courtesy. The pursuit of truth is the entire edifice upon which our legal system is built. This practice direction is flirting with compelled speech in court, risking privacy breaches, and exposing itself to accusations of favouring one side in intense socio-political debates.

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British Columbia’s practice directions on preferred gender pronouns in court are problematic

05 Feb 2021

Mr Maclaren is an elected bencher to the Law Society of British Columbia.

February 6, 2021

To the Editors of Canadian Lawyer Magazine:

We are dismayed by the recent article by Shahdin Farsai, “British Columbia’s practice directions on preferred gender pronouns in court are problematic” (February 5, 2021). Not only is this article legally inaccurateit is deeply harmful to our trans and non-binary colleagues who are worthy of the legal community’s respect and protection.

We refuse to be pulled into a debate about the worth of trans and non-binary lives. The human rights of our colleagues are not something that should be debated. Put simply, this is not a “two-sides” issue. We commend the recent steps taken by the courts in British Columbia to address discrimination in the legal profession and ensure that all court participants can attend with dignity and respect.

We request that Canadian Lawyer remove the article, issue a retraction and apology, and outline the steps it will take in the future to ensure that its articles are both legally correct and respect the human rights of all of our community members, particularly members of the LGBTQ2S+ community.

Until Canadian Lawyer takes these steps, we will decline any requests to write articles, provide quotes, or otherwise contribute to Canadian Lawyer.

Signed: Many lawyers.

Feb 7, 2021 at 6:17 PM ~ Tim Wilbur to Shahdin Farsai

Subject: RE: Article

Hi Shahdin, I regret to inform you that we will be removing your article and including an Editor’s Note explaining our decision.

I apologize if this process has caused you any harm, and I appreciate you reaching out to us to voice your opinion.
As you know, your article has created a very heated debate and our publication felt it necessary to make it clear that we did not share your views. I should have anticipated this before we published your article and for that I sincerely apologize as well.

Tim Wilbur, Editor-in-chief – Law

Canadian Lawyer

Statement regarding a recent opinion posted on our website

By Canadian Lawyer

OPINION 07 Feb 2021

Editor’s Note: An article posted on our website titled “British Columbia’s practice directions on preferred gender pronouns in court are problematic” has been removed.
The article did not reflect the views of Canadian Lawyer Magazine, Key Media and its related entities. 
Tim Wilbur
Editor-in-chief – Law
Canadian Lawyer Magazine