The rape victim may not say “his” penis

Shahdin Farsai wrote an opinion piece for Canadian Lawyer Magazine in October, titled British Columbia’s practice directions on preferred gender pronouns in court are problematic. Yesterday the magazine removed the article.

The article is archived.

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.

… 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.

We saw this play out when the judge compelled Maria Maclachlan to refer to the man who assaulted her with female pronouns, which obviously impeded her ability to give evidence in her own words, and indeed to tell the truth about what happened.

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?”

The woman who gave birth to the girl was being compelled to refer to her as he and him.

But as I mentioned the piece was removed. Conversation ensued.

https://twitter.com/Slatzism/status/1358489502407393280
https://twitter.com/girby/status/1358500206195662849

No skin off his…nose, is it.

H/t GW

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