No need to guess

CBABC SOGIC executive and other members also provided vital input to this article, including: Naomi Moses (they/them), Grace McDonell (she/her), and Florence Ashley (they/them).

Measures to properly identify and respectfully address participants in litigation are well-established in our court procedures and professional practice. We introduce ourselves in court by spelling our names and identifying who we represent in the proceedings. We are careful to call doctors, Doctor; professors, Professor; and opposing counsel, our friends. We ask witnesses whether they wish to swear or affirm, and quickly correct ourselves when we mispronounce someone’s name.

Yet when it comes to people’s gender, we have, until recently, relied on assumptions based on name, appearance, or voice. Or, if those prove unhelpful, we just hazard a best guess.

Fortunately, increased awareness and recognition of the harms of this approach signal that it is time to refresh our professional practice and procedures related to gendered language. The recent changes to courtroom practice introduced by the BC Provincial Court and BC Supreme Court reflect this approach. The courts now ask that those appearing in court provide their titles and pronouns in their introductions. Updating our courtroom introductions in this manner ensures that the judge, court staff, and other parties are aware of how to address everyone properly.

Misgendering in court happens regularly

Introduction directions may seem unnecessary if you have never been misgendered. Just as if your last name is Smith, it may seem unnecessary to spell your name at every appearance. Or if you know everyone in the courtroom, it may seem unnecessary to introduce yourself at all. Yet you do.

Why? While often a little awkward the first few times, this practice quickly becomes reflexive. The underlying purpose of the practice is to ensure that the record is accurate and that everyone knows who is who in the courtroom. The practice also acknowledges that we cannot assume that everybody knows how to spell Smith, that Smith is always spelled S-M-I-T-H, or that someone unfamiliar with the parties will not join the proceeding or review its record.

Similar, more harmful, and more pervasive assumptions about gender cause frequent misgendering in court. In fact, it happens to people of all gender identities.

Cisgender people, whose gender identity corresponds to the gender they were assigned at birth, are misgendered for various reasons. Many people have names that are “gender neutral” or from non-English languages, but which hold a particular association with a specific gender that is not widely known to unilingual English speakers. The way gender is expressed and represented also varies significantly from culture to culture, so information like clothing and mannerisms can lead to inaccurate conclusions. Some cisgender people also have an androgynous gender expression.

Also, with proceedings being increasingly virtual and often phone-based since the start of the COVID-19 pandemic, court staff, judges, and counsel are regularly put in a position where they might inadvertently misgender a person based solely on their name or voice.

Transgender people, whose gender identity differs from the gender they were assigned at birth, are misgendered at significantly higher rates compared to cisgender people — in some cases more often than they are correctly gendered. Gender assumptions based on name, appearance, and voice are more frequently inaccurate.

Further, non-binary people – who do not identify exclusively as either men or women – are often completely invisible in our mainstream culture, in which a strictly binary conception of gender is not only pervasive, but actively and aggressively enforced. They often use gender-neutral pronouns, like they/them, and titles, such as Mx. (pronounced “mix”) or “Counsel” in court. Absent the proactive introduction of pronouns and titles, non-binary people are almost never correctly addressed in court.

If this is all new to you, that’s ok. Unless you or someone close to you is transgender, you may never have had to turn your mind to these matters. But being transgender or non-binary is not new. What is new is that more transgender and non-binary people are being openly and authentically themselves in their personal and professional lives. This is a good thing.

How misgendering can be harmful

Transgender and non-binary people remain among society’s most vulnerable and marginalized, and continue to suffer from many pervasive indignities and substantive inequalities, frequently including the act of misgendering.

Misgendering is a form of microaggression. Persistent misgendering has been shown to have a negative impact on transgender people’s mental health. If you doubt that, think what your world would be like and how you would cope if everyone you knew consistently addressed you by a gender you are not – no matter how often you told them.

While the preponderance of misgendering is unintentional, but not harmless, transgender people are also subject to deliberate misgendering with the specific intent to cause harm.

When misgendering happens unintentionally, it is a reminder to transgender and non-binary people of the systemic failures of society to respect their gender identity and inherent dignity, and signals that they may not be in a physically, socially, or psychologically safe place to be openly themselves.

When this happens to a lawyer in court, it can distract from their submissions. 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 it happens to a witness or a party, it signals that their identity may not be recognized and accorded equal dignity and respect in the courtroom setting. It contributes to the significant barriers to access to justice encountered by transgender people, who face a greater proportion of justiciable legal problems. That, in turn, further complicates their experiences of social exclusion, harassment, and violence. It can also discourage them from obtaining legal assistance for justiciable legal problems.

The harms of unintentional misgendering can be significantly reduced when parties have been made aware of the correct gendered terms to use, through a process like the introduction directions. They also allow for any mistakes to be addressed with a quick apology and a genuine effort to use the correct terms going forward.

When misgendering is intentional, transgender and non-binary people are subjected directly to prejudice and animosity. To deliberately disrespect the title and pronouns a person has indicated conform with their gender identity is a direct, hostile, and malicious indignity that denies them basic respect. BC’s Human Rights Tribunal has specifically recognized that misgendering and denial of transgender people’s existence are discriminatory.

The introduction directions represent a necessary evolution of court procedures that reflect the steps the BC Human Rights Tribunal and courts have taken to ensure misgendering does not occur in their judgments or deliberately by parties in disputes before them. This move also ensures that the justice system respects transgender and non-binary gender identities, and gender expression, protected by the BC Human Rights Code and the Canadian Charter of Rights and Freedoms.

The changes to courtroom practice regarding pronouns and introduced by the BC courts have attracted a widespread public and professional response. Understandably, some confusion exists for those unfamiliar with these issues. To help, the Canadian Bar Association, BC Branch has developed materials providing examples of how to share titles and pronouns in court and general professional practice.

The introduction directions are a common-sense solution to avoiding harms against gender diverse participants and others in the justice system. Importantly, they are an instance of BC courts reaffirming the human rights and dignity of transgender, non-binary, and other gender diverse people. As the arbiters of justice, the courts signalling the need to avoid misgendering and acknowledging gender diversity will undoubtedly move other facets of society in a similar direction.

It also marks a rare opportunity to truly effect significant, positive change with a small, easy shift in professional practice. As easy as just asking.