Feb 9th, 2021
Bruce Pardy, National Post
When courts issue practice directions, usually only litigation lawyers pay attention. No one else needs to know when counsel should wear gowns or how commissioners should be identified on affidavits. But recently, the British Columbia Supreme Court issued a direction like no other. Practice Direction 59, released on December 16, advises parties and their lawyers, when introducing themselves in court, to provide their “correct pronouns” to be used in the proceeding. People look to courts to protect their fundamental freedoms, but in B.C., the courts themselves now encroach upon freedom of speech by expecting litigants to use pronouns that their opponents prescribe.
The previous month, a judge of the Court gave a preview of the implications. The Court was hearing the case of a 17-year-old who wanted to transition from female to male. The father and provincial authorities supported a plan to have an operation to remove both of the teen’s breasts, but the mother had brought an action trying to prevent it. The mother regarded the teen as a girl, and it was the transition to male that was the very issue before the court. Yet the judge challenged the right of the mother and the mother’s counsel to refer to the teen as “her”. 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?” Translation: You may be arguing that your client’s daughter should remain a girl, but please acknowledge that he is a boy.
The practice direction, along with an almost identical notice applicable to B.C. provincial courts, was the product of consultation with the Sexual Orientation and Gender Identity Community (SOGIC) of the Canadian Bar Association (B.C. chapter). One of its purposes, according to announcements, is to improve experiences within the legal system for gender diverse parties and lawyers. The direction does not merely clarify that parties and their counsel may advise the court of their pronouns — litigants were free to do that before the direction was issued — but that they may require other parties to comply. By making declared pronouns “correct”, the direction makes other pronouns, by default, incorrect.
Under the direction, correct pronouns are “to be used” in the courtroom. Even identifying your own pronouns is compulsory. Any parties or lawyers who decline to do so will be prompted by a court clerk. While practice directions do not constitute the law in the same sense as statutory enactments and regulations, they do reflect the Court’s expectations on practice and process. Besides, the last thing litigants wish to do is irritate their judge. For practical purposes, the practice direction is the law inside the courtrooms of British Columbia.
People are apt to believe that the law will protect them from the irrationality of mobs. They may think that courts are in the business of assessing evidence and applying laws to facts, and that they will be neutral in every dispute, insulated from the influence of politics. Instead, B.C. courts are insisting that litigants say things they may not believe. They validate subjective identities of parties by legitimizing the proposition that everyone must declare their own pronoun that other people must use.
When Jordan Peterson objected to the proposal to add “gender identity or expression” to the Canadian Human Rights Act in 2017 on the grounds that people could be required to use prescribed pronouns, he was ridiculed for scaremongering. Only a handful of lawyers agreed with him, or at least few said so publicly. We were derisively told that this and similar provisions in provincial human rights codes would have no effect upon free speech, notwithstanding the advice of the Ontario Human Rights Commission that “refusing to refer to a trans person by … a personal pronoun that matches their gender identity … will likely be discrimination” in employment, accommodation, and education. Now prescribed pronouns have become compulsory in British Columbia courts too.
Proponents of the practice direction argue that using a person’s personal pronoun is merely to treat that person with respect, and that doing so should be regarded as part of a lawyer’s professional responsibility to be civil in the courtroom. However, when courts enforce prescribed pronouns, they are not merely requiring civility but taking sides in a legal, political, and philosophical dispute. To compel pronouns is to insist that people can own and control how others regard them, and to force them to reflect a particular view of reality.
The agenda is to force social change by making dissent illegitimate. Last week, when Canadian Lawyer Magazine published an opinion piece by B.C. lawyer Shahdin Farsai critical of the direction, an enraged mob of social justice lawyers descended, threatening over social media to boycott the magazine and demanding retraction. The editors obliged, removing the article and pleading that it “did not reflect the views” of the magazine, as though that has ever been the criterion for publishing op-eds. Such is the present state of open debate on these issues within B.C.’s legal community.
Free people make their own choices. Women are at liberty to have their breasts removed and identify themselves as men if that is what they want. But true freedom is universal and reciprocal, and other people are not bound to go along. They may express their reactions in their own words and refer to others as “him” or “her” as they see fit. No one should be obligated to affirm someone else’s self-image.
Reciprocal freedom is not now what we have. Today’s “human rights” put words in the mouths of some for the benefit of others. The Supreme Court’s practice direction represents state-mandated identity politics on the road to perdition. Social justice activism has captured the courts of British Columbia.
Bruce Pardy serves on the Board of Directors at the Justice Centre.