By Mackenzie Coleman, Student at the Faculty of Law, University of Alberta
Within the Canadian legal system, transgender people have faced a wide range of pressing and well-documented legal needs and yet, most of these needs remain unmet. Along with this, transgender people have historically, and continually, faced systematic access to justice barriers and regularly faced discrimination.1 While the legal system is supposed to be a solution to address issues, for transgender people, it has the opposite effect. As a result of their unaddressed legal problems, transgender people face more co-occurring legal issues as well.
The Canadian Bar Association and the HIV & AIDS Legal Clinic Ontario released a study this fall that transgender people are more likely to have coexisting legal issues and are less likely to interact with the justice system. Canada’s justice system features “significant and pervasive” barriers specifically for transgender people encountering legal issues.2
In the past few years, provinces across Canada have taken strides to promote access to justice for transgender people. For example, in February 2021, the Quebec Superior Court declared six provisions of the province’s Civil Code unconstitutional. The Superior Court, in Center for Gender Advocacy v Attorney General of Quebec, found the provisions violated rights guaranteed by Quebec’s Charter of Human Rights and Freedoms as well as the Canadian Charter of Rights and Freedoms.3 Namely, the impugned articles of the Civil Code were concerned about issuance of birth and death certificates, registration of births and deaths, and changes of name and sex designation.
Audrey Boctor, and lead counsel for the Center for Gender Advocacy says that the case provides, “a recognition that everybody has the right to have their identity recognized and to identify documents that reflect it”.4 She went on to say that while this case is important and it sets an important precedent for the recognition of equality, there is still more work to do.
Address Directives
One set of measures that aims to improve the courtroom experience for transgender and non-binary individuals is the respectful forms of address directives. Having lawyers and parties proactively identify titles and pronouns helps to prevent the misgendering of courtroom participants. Misgendering causes significant psychological harm to transgender people and limits their access to a safe and fair legal system.
Transgender people already experience consequential barriers to justice, given that they are more likely to experience economic and social marginalization. Marginalization is only increased by misgendering.5
Arguments against requirements to identify one’s pronouns in court are primarily based on how this requirement interferes with a lawyer’s professional duty to their client. However, this affirmative action aids the proper administration of justice, and it allows courtrooms to evolve with changing social norms. It is well-established in Canadian case law that gender identity and expression are fundamental parts of human integrity that must be ratified by the law.6
In 2019, the British Columbia Court of Appeal issued an amended practice directive which provided direction on parties in the courtroom to convey their preferred form of address. A year later, the British Columbia Provincial Court and Supreme Court issued the same directive. British Columbia courts were the first to introduce these forms of address directives. Other provinces, including Manitoba, Nova Scotia and Ontario followed suit and in 2023, the Federal Court of Appeal issued a practice directive about forms of address and pronouns.7
The public commentary in support of the British Columbia courts’ directives reaffirms the rationale for the policy change. Aiming to make courtrooms more inclusive of transgender, non-binary, and other gender diverse people ease the discomfort which transgender people experience in institutional spaces. The common sense approach that the British Columbia courts took is an important step towards creating a more equitable, inclusive, safe and diverse legal system.
In Hansman v Neufeld, the Supreme Court of Canada stated that “transgender people have faced discrimination in many facets of Canadian society” and they remain marginalized and disadvantaged.8 By implemented preferred forms of address and pronouns, the Canadian legal system removes one barrier to transgender people’s access to justice. While there is still much work to be done, this is an important step in removing unnecessary barriers to their right to justice. Canada should continue to make strides to create a more trans-competent legal system.
Master in Chambers to Applications Judge
The Alberta government renamed the “master in chambers” title to “applications judge” in an attempt to make the Albertan courts more inclusive. This change has been codified in Section 30 of the Judicature Act which now says that “in this part, ‘application judge’ means applications judge as defined in the Court of King’s Bench Act”.9 Now, applications judges should be addressed at hearings as “judge” or “your honour”.
The master title was removed for a variety of reasons including the fact that it is not gender neutral and carries negative historical and cultural connotations. Court of King’s Bench Chief Justice Mary Moreau (as she then was) said that “Albertans value equality, diversity, inclusivity, and innovation, and they expect to see these values reflected in their justice system”.10 She went on to say that modernizing titles in the justice system makes the Canadian justice system more accessible and inclusive.
“Master” has been a title in court since before women have been allowed to practice law and the Canadian legal system has only become more diverse with the inclusion of transgender and non-binary legal officers.
Implementing gender-neutral language is one of the ways that Canadian courts can make the legal system more accessible and inclusive. As well as that, gender-neutral language aids in the general public’s access to justice. “Masters in chambers” is a vague term that is confusing to those outside of the legal profession. A neutral term like applications judge is much clearer and more comprehensive title. Alberta is not the only jurisdiction to recognize that the “master” title is not gender inclusive. New Zealand, Australia and Ontario have all removed the term “master” from their courts.
Applications judge is the more inclusive option, and it more accurately reflects the role of the judges to preside over specific hearings. There has been some pushback to the name change primarily due to the fact that in different jurisdictions, applications refer to different aspects of civil procedure. In Manitoba, for example, an application is called a motion.
As of January 1, 2023, “My Lord” and “My Lady” will no longer be used by those appearing before the justices of the Court of King’s Bench. In both court and in written correspondences, judges are to be referred to as “Justice”. The practice directions did not specifically identify the rationale for the change, but it is clear that it is meant to create gender-neutral title for the members of the Court of King’s Bench.
Transgender people, to conclude, continue to fact systematic barriers in the legal system. However, initiatives such as implementing gender-neutral language in the courtroom, reflecting actual civil procedure practice, are strides that can make the legal system more accessible.
- David Fraser, “Reforms needed for transgender people to access justice: Canadian Bar Association.” National Post (3 February 2023) [Reforms needed]. ↩︎
- Ibid. ↩︎
- Center for Gender Advocacy v Attorney General of Quebec 2021 QCCS 191. ↩︎
- Reforms needed, supra note 1. ↩︎
- 5 Samuel Singer and Amy Salyzyn, Preventing Misgendering in Canadian Courts: Respectful Forms of Address Directives, 2023 101-2 Canadian Bar Review 319, 2023 CanLIIDocs 2333, Preventing Misgendering in Canadian Courts : Respectful Forms of Address Directives | CanLII. ↩︎
- Ibid. ↩︎
- Ibid. ↩︎
- Hansman v Neufeld, 2023 SCC 14 at para 86. ↩︎
- Judicature Act, RSA 2000, c J-2. ↩︎
- 10 Jonny Wakefield, “Alberta court ditches ‘master in chambers’ title, deemed outdated and sexist”, Edmonton Journal (31 August 2022), Alberta court ditches ‘master in chambers’ title, deemed outdated and sexist | Edmonton Journal ↩︎
The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.