Written by Eric Epp
Access to justice can be used to describe not just financial barriers to the justice system, but also social and psychological barriers. For those who identify as transgender, a particularly pervasive barrier comes in the form of being misgendered in court. Since 2021, all levels of Manitoba courts have issued Practice Directions which require parties or counsel to include their preferred pronouns of address at the beginning of the proceedings. For clarity, within this post I will be using the term trans to encompass those who identify as a different gender than that assigned at birth.
The Directions came from the Court of Appeal in May 2021 and from both Queen’s Bench and Provincial Court in June 2021, coming into effect September 2021. In addition to specifying pronouns at the outset of proceedings, they also indicate that the gender-neutral term of “Justice” may be used when addressing a judge in Queen’s Bench and the Court of Appeal.[1] This directive indicates positive steps the legal profession is taking to make both the legal system and the profession more inclusive.
The Directions have an immediate effect on trans court experiences. First, and most obviously, it helps avoid dehumanizing incidents of being misgendered. Second, it creates an environment where everybody expresses their pronouns, taking away the uniqueness of needing to specify one’s pronouns. In other words, trans justice system participants may now feel closer to even footing in court with those who are cisgendered because under these new directives, specifying pronouns is a normal court practice, preventing trans individuals from being othered or forced to out themselves.[2]
On the surface, to people who have never experienced being misgendered, this may seem like a very minor change; however, the impact is anything but inconsequential. Samuel Singer has written that being referred to by the wrong name or gender will significantly impact the way in which a trans person will experience the justice system.[3] This includes both as a lawyer or another justice system participant. For example, when a trans lawyer is misgendered they must make the unenviable choice of either correcting the mistake or letting it slide at the expense of their dignity so that their submissions are not affected.[4] For trans litigants, some have expressed that the fear of being misgendered can often be more of a worry than the actual litigation at hand.[5] Being misgendered “has a profoundly stigmatizing and marginalizing impact” and forces a person to question their safety, their standing before the court, and whether to make a correction.[6] In the worst case scenario, misgendering appears to have been used as a legal strategy.[7]
Trans persons face a disproportionate number of justiciable issues, which adds another layer to scope of the impact of these directions. A survey to gain insight the legal problems of trans persons in Ontario indicated that they encountered justiciable issues disproportionately in the areas of medical treatment, police actions, personal injury/crime victim, housing, neighbors/property, disability benefits, employment, family law, and discrimination.[8] In order to adequately address these issues substantively, when they do make their way into the court system, trans persons need to feel welcome and that they are an equally respected participant. Accordingly, trans persons are more likely to anticipate mistreatment from the justice system engaging with it.[9] The Manitoba practice directions will hopefully allow for more positive experiences in the courts which might have a trickle-down effect on trans perceptions of the justice system.
Gender identity is a protected grounds under the Manitoba Human Rights Code.[10] Not only is respecting another person’s gender identity a basic human right, but it is also the simplest way to treat another person with equality, dignity, and respect. Manitoban courts are taking steps to treat this right substantively and eliminate one more barrier that prevents trans persons from fully engaging with the justice system. It is a small step, but it appears to be a one that has a significant impact in creating a more hospitable court.
[1] Court of Queen’s Bench of Manitoba, Practice Direction, “Re: Forms of Address for Parties, Counsel and the Judiciary of the Court of Queen’s Bench” (17 June 2021); Manitoba Court of Appeal, Practice Direction, “Forms of Address and Pronouns” (27 May 2021); Provincial Court of Manitoba, Practice Directive, “Forms of Address for Parties and Counsel in the Provincial Court of Manitoba” (June 2021).
[2] Niko Stratis, “How a Canadian court system officially ended misgendering in the courtroom” (16 April 2021), online: Xtra* <https://xtramagazine.com/power/misgendering-canadian-court-trans-198767> [https://perma.cc/JKZ8-3QSW].
[3] Samuel Singer, “Trans Rights Are Not Just Human Rights: Legal Strategies For Trans Justice” (2020) 25: 2 CJLS 293 at 311 (doi:10.1017/cls.2020.17).
[4] Dustin Klaudt & Lisa M.G. Nevens, “No Need to Guess” (10 February 2021), online: CBA National <https://www.nationalmagazine.ca/en-ca/articles/law/opinion/no-need-to-guess> [https://perma.cc/XZ32-YAQX].
[5] Stratis, supra note 1.
[6] Letter from Sexual Orientation and Gender Identity Community Section (SOGIC)and the Supreme Court Liaison Committee of the Canadian Bar Association to The Honourable Madame Justice Suzanne Côté (24 January 2022) <https://www.cba.org/CMSPages/GetFile.aspx?guid=47e5a20d-20e1-4f9a-87c2-cc605ec2cc9a> [https://perma.cc/F87Y-7W86] at 2.
[7] Chan Tov McNamarah, “Misgendering as Misconduct” (11 May 2020) 68 UCLA L Rev at 42 <https://www.uclalawreview.org/misgendering-as-misconduct/> [https://perma.cc/B7YN-YZDW].
[8] James J et al, “Legal Problems Facing Trans People in Ontario” TRANSforming JUSTICE Summary Report (6 September 2018) at 2 <https://www.rainbowhealthontario.ca/wp-content/uploads/2018/09/TransFJ-Report2018Sept-EN.pdf> [https://perma.cc/R5A5-SYVB].
[9] Ayden Scheim & Greta Bauer, “Safety and Access to Justice among Transgender and Non-binary Sex Workers in Canada under PCEPA: Findings from the Trans PULSE Canada Study” Trans Pulse Canada (18 February 2022) at 6 <https://www.ourcommons.ca/Content/Committee/441/JUST/Brief/BR11595955/br-external/Jointly3-e.pdf> [https://perma.cc/9V6M-EAFV].
[10] The Human Rights Code, SM 1987, c 45, CCSM c H175, ss 9(2)(g).
The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.