New court policy has admirable intentions

Hey there, time traveller!
This article was published 26/06/2021 (1576 days ago), so information in it may no longer be current.

OF all places, Manitoba’s law courts would seem least likely to encourage people to get real about their gender titles.

Courtrooms in this province are relics of mean-nothing titles and forms of address that should have been shelved along with powdered white wigs, so it’s somewhat surprising — heartening, but still surprising — that Manitoba trial courts will, on Sept. 13, introduce a progressive policy to encourage people in courtrooms to state their gender and preferred title.

The commendable intention is to use titles that more accurately reflect a person’s gender identity. That intention is a bit rich in a venue where judges and lawyers are addressed by titles that long ago lost any claim to an honest and accurate depiction of the person being described.

It’s hard to believe, but in Manitoba Court of Queen’s Bench, judges are still addressed as “My Lady” or “My Lord.” Someone needs to tell the keepers of courtroom protocol that the term “Lady” is as outdated as corsets, and that members of many religious faiths object to addressing another person as “My Lord.”

Lots of Manitoba judges use “The Honorable” before formal uses of their given name, and they insist on being addressed as “Your Honour” in provincial courtrooms, a form of systemic self-angrandizement. Outside of courtrooms, we only award people the high compliment of “honorable” if they earn it. But, in court, the honorific is forced, much like telling the schoolyard bully “You’re the best” because he’ll hit us if we don’t say it.

Manitoba lawyers address each other with titles such as “my learned friend,” designations which are apparently meant sarcastically because the lawyers will then try to outfox each other, summoning the full flowering of their eloquence to rip apart the “learning” of their “friend” in front of the public gallery. Real friends don’t act like that.

It’s in this surreal environment of unearned honorifics and hollow titles that Manitobans will now be encouraged to more honestly disclose their gender.

It will work like this: the obligation will be on lawyers to introduce themselves as well as their clients or witnesses using a title, such as Mr., Ms., Counsel or Mx. (pronounced “mix”), with the latter referring to people who don’t fit the gender binary. If lawyers don’t indicate everyone’s preferred titles, a court clerk will prompt the lawyer.

Manitoba will be the second province to introduce these gender-identification procedures, and will follow a model introduced last December by British Columbia’s trial courts. The change in B.C. became controversial when lawyer Shahdid Farsai wrote a column for the Canadian Lawyer online publication, saying the courts “were flirting dangerously close to compelling certain forms of speech from those who come before them. Compelled speech forces a person to say certain things, including things they may not believe. It is, therefore, even worse than restricting speech.”

Two hundred lawyers, law students and paralegals signed a letter of protest in response to her opinion article, saying, “We refuse to be pulled into a debate about the worth of trans and non-binary lives. Put simply, this is not a ‘two-sides’ issue.” Canadian Lawyer subsequently retracted and took down Farsai’s column.

For the record, the B.C. model, which Manitoba courts plans to follow, does not compel people. People will be asked twice for their gender title but, if they decline, they won’t be penalized. That means people who don’t fit traditional gender stereotypes aren’t forced to come out.

As long as the Manitoba policy stops short of demanding people identify, the new measures seem to be an admirable way to signal awareness and inclusion, showing respect for the identities of gender-diverse people and reducing hurtful misgendering of people, including trans and non-binary folks.

At first glance, however, the new Manitoba policy seems to have an important omission: according to the court system’s online directives, the only people asked to identify will be lawyers, their clients and witnesses. Judges are omitted. Nowhere in the Manitoba directive does it say judges will also be asked to identify their gender, and it doesn’t explain why judges are excluded.

The policy directive says the purpose of the new gender-identification policy is to “treat all court participants with equal dignity and respect.” Admirable goal, but apparently “all court participants” doesn’t include judges, the most high-profile representative of the legal system.

Perhaps judges should also be given an opportunity to declare a title that accurately describes their gender. We might find some esteemed members of the bench have long been misgendered by the titles “My Lady” and “My Lord.”

Carl DeGurse (he/him/his) is a member of the Free Press editorial board.