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Challenging “Compelled Speech” Objections: Respectful Forms of Address in Canadian Courts

Pronouns are currently a hot topic in the legal profession, following recent measures by Canadian courts to prevent the misgendering of courtroom participants. Directives in British Columbia now require lawyers and parties appearing before courts to proactively identify their titles and pronouns (see the directives of the Supreme Court of British Columbia, the Court of Appeal, and the Provincial Court). Other Canadian courts have followed suit. For example, Manitoba, Nova Scotia and Ontario appellate courts encourage counsel and parties to share information about their titles and pronouns when introducing themselves in court.

Some object to these measures. They argue that the requirement to identify one’s own forms of address and to respect the forms of address of others amounts to improperly mandating compelled speech. It is true that when a court requires a lawyer to use certain pronouns or titles when addressing someone else, the court is asserting a degree of control over that lawyer’s speech. Likewise, when a court asks a lawyer to provide their forms of address, it is directing that lawyer to “say something”. In both cases, the court may be asking the lawyer to do something that they do not want to do, and would not otherwise do, absent the court’s intervention. But, as we detail below, measures related to pronouns and titles are just one of many ways that judges direct lawyers’ speech and behaviour in Canadian courtrooms. Courtroom speech is already highly controlled.

The important questions to ask in assessing measures related to in-court speech is whether such measures are justified because they further our justice system’s underlying values and/or are necessary for the court to function. As we outline in this column, requirements that counsel and other courtroom participants identify their titles and pronouns and respect those of other courtroom participants are warranted because they contribute to the respectful, fair, and equal administration of justice.

Courtroom Speech is Highly Controlled

The entire process of courtroom adjudication is predicated on controlling when and where courtroom actors speak and what they say. Rules dictate the order in which lawyers speak, the location from which they must do so, the form and content of their questions, and even their tone. There are rules about how lawyers must address other people in the courtroom, including the requirement to use honorifics—such as “Your Honour”—when addressing judges.

There are also existing protocols and rules that detail the exact form, content, and timing of how lawyers introduce themselves to the court. In many courts, it is common practice for lawyers to identify themselves by name and then to spell out their name, often in a particular order (e.g. last name, first initial). Courts also require lawyers to indicate who they are representing before starting submissions. This may be done orally or via a written counsel slip, depending on the court’s instructions. In some courts, lawyers must also identify their year of call, as this is how speaking order is determined. For virtual hearings, practice directions specify the identification information that a lawyer must include on their screen.

None of this is out of the ordinary. It is well settled that courts have the authority to manage and control their proceedings and that this authority is necessary to ensure the proper administration of justice and the integrity of the legal system. Courts exercise their jurisdiction over their proceedings in many ways, including directives about what counsel must wear, the use of electronic devices, media access, and guidelines about court etiquette for members of the public.

It is also well settled that courts and law societies may limit a lawyer’s expressive freedoms. This reminder is particularly salient in response to those who claim that mandating respectful forms of address impedes on constitutional rights. Freedom of speech also has, at times, been used as a banner to justify discrimination. As Brenda Cossman observes, opponents of trans rights have used freedom of expression arguments to obscure their true goals of resisting trans people’s access to legal recognition and protection. Stated otherwise, not only do compelled speech objections to directives about pronouns and titles largely sidestep the reality that courtrooms are already places of highly regulated speech, they are also taken up by some to disguise an underlying discriminatory ideology.

Courtroom Speech Evolves to Reflect Societal Change

Courtroom rules about speech have always responded to changes in our legal system and our broader social context. In November 2021, for example, courts in British Columbia directed counsel to refrain from addressing justices using the terms “My Lady”, “My Lord”, “Your Ladyship” or “Your Lordship”. This directive followed criticism that such forms of address were antiquated and problematic. Lisa Nevens argued that these honorifics excluded non-binary people, and were classist, colonial, and “out of step with the goal of reconciliation”. The Supreme Court of Canada and the Court of Appeal for Ontario, among other Canadian courts, similarly instruct counsel not to use the terms “my lady(ship)” and “my lord(ship)”.

The history of women judges illustrates that we can and must ensure that how we speak to each other in courtrooms evolves as the world changes. About 50 years ago, lawyers in Quebec and Ontario had to learn new honorifics to respectfully address the first women judges. As Constance Backhouse recounts, when Madam Justice L’Heureux-Dubé was appointed to the Superior Court of Quebec in 1973, she

objected to being addressed as Monsieur le juge, the term most often blurted out by the lawyers who appeared in her courtroom. “I said, ‘You can do anything to me, but don’t change my sex,’” she recalled. Instead, she selected Madame le juge, a combination of gender opposites. “It took a long time before they got used to calling me Madame le juge,” she added. “I was called Monsieur le juge for years…” (p. 177)

Backhouse describes the similar experience of Justice Mabel Van Camp, the first woman appointed to Ontario’s Superior Court in 1971, who

objected to the customary title ‘Mister Justice.’ Because she was unmarried, some suggested she be called ‘Miss Justice.’ This struck others as a short slip away from ‘injustice’ and Van Camp had settled upon ‘Madam Justice’ without an ‘e.’. (p. 207)

Today, of course, insisting on addressing women judges as Mister Justice or Monsieur le juge seems preposterous, and many Canadian courts find that the terms “my lady(ship)” and “my lord(ship)” are no longer appropriate.

Language is constantly evolving and has certainly done so with respect to gendered forms of address. Upon its introduction, there was resistance to the term “Ms.”, but it serves an important purpose (allowing women to be addressed independently of their marital status). It is now commonplace. Many non-binary people use the pronouns “they” and “them”, and this is now reflected in legal decisions, style guides, and leading dictionaries. Mx. is also increasingly common as a gender neutral prefix (pronounced like the word “mix”), and has been recognized by the Oxford English Dictionary since 2015 and the Merriam Webster Dictionary since 2017. In French, pronouns like “iel” and “ille” are used by non-binary people, and after years of advocacy and ongoing resistance, the term “iel” was recently added to a major French dictionary, Le Robert.

As society changes, so do the ways that we address each other. Our legal system must keep pace with the evolving language of the society it serves.

Respectful Forms of Address Further Justice System Values

Court directives about forms of address are a positive and important change. For the reasons we outline below, such directives are necessary to ensure the respectful, fair, and equal administration of justice.

The goal of court directives about forms of address is to prevent the misgendering of courtroom participants and the serious harms that flow from misgendering. Misgendering is not about “mere preferences” or benign word choices. As Chan Tov McNamarah explains in a recent article: “misgendering…is a critical stressor that is experienced as humiliating, stigmatizing, psychologically distressing, and dehumanizing.” McNamarah notes that deliberate misgendering can be part of efforts to humiliate and embarrass trans people. Recognizing the harms of misgendering, the British Columbia Human Rights Tribunal observed that “[l]ike a name, pronouns are a fundamental part of a person’s identity” and using trans people’s names and pronouns is a basic obligation not to discriminate, not an accommodation.

Misgendering has especially negative impacts in a courtroom. Singer has written, “to be referred to by a name or gender that is not your own will evidently impact one’s ability to participate fully in proceedings, and to be fully heard and understood. It may also have significant safety consequences.” Trans people’s access to justice is significantly impaired by misgendering.

Trans people’s interactions with the justice system also too often result in their private gender history being disclosed on the public record. As a result, Singer writes, trans people “face a potential double punishment: a public airing of their legal issues, and their outing, resulting in a risk to their social, financial, and personal security.”

For lawyers who are misgendered in the course of their work, misgendering is harmful and distracting. It is also a barrier to equity and inclusion in the legal profession. Dustin Klaudt and Lisa Nevens describe the challenges that a lawyer faces when misgendered in court:

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.

In some cases, deliberate misgendering in the courtroom is part of a strategy to intimidate and harass trans parties or counsel—a disturbing phenomenon that McNamarah and other scholars have reported on (see, e.g. here and here). By intimidating trans parties and forcing them to spend time and energy defending their entitlement to basic respect (to which they are legally entitled) rather than advocating for their case, intentional misgendering clearly undermines the proper functioning of the court.

Forms of address directives help ensure that everyone in the courtroom can participate in the court’s proceedings as fully as possible and operate to minimize harm. In serving these functions, they are necessary and consistent with other controls on courtroom speech that seek to further our justice system’s underlying values. They are also fundamental to a court’s functioning: courts must be able to properly and respectfully identify courtroom participants. Judges are required to treat lawyers, parties and witnesses respectfully and to refrain from discriminatory behaviour, while also ensuring that others in their court do the same. Directives about pronouns and titles are necessary to meet these judicial obligations.

Professional Responsibility Not to Misgender

Opponents of forms of address directives sometimes argue that such directives may be inconsistent with a lawyer’s professional responsibilities. But a close examination of professional conduct rules reveals that there is, in fact, no inconsistency. To the contrary, lawyers have professional responsibilities that require respectful use of pronouns and titles.

Rules of professional conduct require lawyers to “be courteous, civil, and act in good faith to the tribunal and with all persons with whom the lawyer has dealings.” In court, these obligations mean that lawyers must treat other participants politely and refrain from ridiculing them or launching unwarranted personal attacks. Given the harms associated with misgendering, respectful use of titles and pronouns is an essential part of a lawyer’s civility obligations.

Beyond civility obligations, Singer has also previously highlighted that professional codes of conduct, “require that lawyers respect human rights laws, which protect trans people from discrimination on the ground of sex and under the more recently added grounds of gender identity and gender expression.” The law in this area is clear. Canadian human rights law affirms trans people’s right to be free from discrimination. It has specifically recognized trans people’s right to have their gender identity respected and their proper pronouns used. For example, in EN v Gallagher’s Bar and Lounge, a bar owner who regularly misgendered one gender queer and two non-binary employees was found to have discriminated against them on the basis of gender identity, contrary to Ontario’s Human Rights Code.

Samantha Peters has also noted that, not only do lawyers have a “special responsibility to respect the requirements of human rights laws in force in Ontario”, lawyers also have a professional responsibility to respect pronouns and titles, based on their obligations “to be competent, provide quality service by providing courteous, thorough, and prompt service to clients.” Simply put, trans-competent lawyering is now a necessary part of legal practice.

Finally, we note that respectful pronoun and title use is consistent with lawyers’ broader obligations “to try to improve the administration of justice.” As Joshua Sealy-Harrington has argued in his work, for lawyers, “reasonable mindfulness of barriers to equality-seeking groups is an established legal obligation.” Viewed through this lens, respectful pronoun use is one way that lawyers can demonstrate “a basic commitment to the concept of equal justice for all”.

Zealous Advocacy and Freedom of Speech

A corollary to the objection about compelled speech is the assertion that forms of address directives may impede a lawyer’s ability to represent their clients with zealous advocacy. Lawyers forwarding this argument may claim that misgendering is necessary if a client instructs them to advance anti-trans legal arguments. They may also assert an obligation to defend a client’s right to refuse to follow a court’s directions about the proper use of titles and pronouns.

But just because a client believes something, however sincerely, it doesn’t mean that they can implement those beliefs through their lawyer’s in-court speech. There is no theory or practical application of zealous advocacy that mandates or licenses unconstrained courtroom speech. There is no right for a lawyer to say whatever they want in court, even if it reflects their client’s beliefs or they think it would help their client’s case. Lawyers’ speech, even in the pursuit of zealous advocacy, can be and is restrained. Examples of obviously inappropriate speech from counsel, even if expressed on behalf of a client, include the repetition of sexist or racist slurs, defamatory comments, or vulgar language. As the Supreme Court of Canada has acknowledged: “speech is not sacrosanct simply because it is uttered by a lawyer.”

Some cases of deliberate misgendering by lawyers are simply targeted harassment. As McNamarah notes, where “intentional and repeated misgendering is used to intimidate and harass…[m]isgendering must be seen as a method deployed simply to badger litigants, with no underlying intent to advance a client’s position.” Our justice system has long had rules in place that prevent the harassment of opposing parties.

As we explained above, the proper functioning of the justice system, professional responsibility obligations, and human rights law all require lawyers to refrain from misgendering. These are exactly the types of limits to which zealous advocacy has historically yielded.

Conclusion

Canadian courts have long exercised power over how courtroom participants speak and act. Lawyers are part of a highly regulated profession that frequently pivots to respond to changing legal and social landscapes. To represent their clients properly, litigators learn and follow the procedures and customs of multiple courts and tribunals. Court directives designed to ensure the proper use of titles and pronouns are best understood as simply another exercise of a court’s authority, aiming to achieve similar objectives. Canadian lawyers and judges have all the skills necessary to adapt.

Across Canada, legal stakeholders are working to improve the legal system. Their efforts include increasing access to courts and to the legal profession and making both more inclusive. Forms of address directives are a concrete way to move this work forward, providing a “common-sense solution to avoiding harms against gender diverse participants and others in the justice system”. We must move beyond unfounded arguments about pronouns as compelled speech and continue the daily work of supporting the respectful, fair, and equal administration of justice.

The authors thank Florence Ashley, Monica Cheng, Robert Leckey, Jena McGill, Lisa Nevens, Stephen Pitel, Sylvia Rich, and Adrienne Smith for their comments on earlier drafts.

Comments

  1. An excellent take — enlightening to see the half-century-old parallels between arbitrary grammar traditions and oppression.

    As a nervous nonbinary person preparing to enter the legal field this was heartening content to stumble upon.

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