BPC Bulletin: Boycott of Canadian Lawyer Magazine
In early February 2021, more than 160 lawyers, law professors and others signed a letter that endorses a boycott of Canadian Lawyer magazine.
They object to the publication of an opinion column by Shahdin Farsai, a lawyer in British Columbia, in the first week of February 2021.
Ms. Farsai objects to a direction by the B.C. Supreme and Provincial courts that requires (as she said) “parties and/or lawyers to state their preferred gender pronouns at the beginning of all court proceedings ...”
The letter to Canadian Lawyer, dated February 6, declares: “The signatories have agreed to not provide articles, quotes, or otherwise contribute to the magazine until Canadian Lawyer removes the article, issues a retraction and apology, and outlines the steps it will take in the future to ensure that its articles are both legally correct and respect the human rights of all of our community members, particularly members of the LGBTQ2S+ community.”
On February 7, Key Media, the magazine’s publisher, removed Ms. Farsai’s column from canadianlawyermag.com. An explanatory note appears where the opinion column once appeared:
The opinion column and the boycott have provoked controversy. Twitter users have both criticized and supported the opinion column — and Key Media’s decision to remove it. Critics accuse the column of expressing transphobia; supporters defend Ms. Farsai’s freedom of speech and point of view.
Read Shahdin Farsai’s column on the Wayback Machine, an archive:
British Columbia’s Practice Directions on Preferred Gender Pronouns in Court Are Problematic
These Requirements Raise Issues of Compelled Speech, Privacy Rights and Judicial Impartiality
By Shahdin Farsai
On December 16, 2020, both the BC Supreme and Provincial courts issued practice directions to lawyers that require parties and/or lawyers to state their preferred gender pronouns at the beginning of all court proceedings, which are “to be used” by all participants appearing before the courts including judges.
My antennas naturally went up as a lawyer. I see these practice directions as problematic for three central reasons. They are potentially compelled speech in court, a breach of privacy rights, and damage the perception of judicial impartiality.
Practice directions do not have the force of law as do formal enactments and court rules, but they express the view of the court regarding matters of practice and procedure. Litigants and practitioners are expected to comply with them or show good reason for doing otherwise. Nevertheless, the directive employs mandatory language that implies that other court participants must employ someone´s preferred pronoun when referring to them in the third person in court. Outside of court, we have legislation to protect gender identity or expression in the BC Human Rights Code, but inside court all parties are protected by absolute privilege or immunity. This doctrine shields the legal process from itself becoming the source of further litigation. No one can dictate the words spoken or written by court participants including judges during judicial proceedings. The doctrine is essential to the administration of justice because it permits parties to give evidence in whatever words they choose and lawyers to protect and present their client´s case unfettered.
The doctrine of absolute immunity goes hand in hand with lawyers’ professional duty to zealously protect their client’s rights. Advocates must not be under any obligation to refer to another party by their preferred pronouns, especially if doing so would go against the legal position and the instructions that they receive from their clients. This point was made in a recent case before the BC Supreme Court. The court heard the case of a mother attempting to prevent her 17-year-old daughter from having surgery to remove her breasts. The daughter wanted to transition to the male gender, and provincial authorities supported her wish. The mother still regarded her daughter as a female. The question of her gender transition was the very issue before the court. Yet when the mother and her counsel referred to the daughter as “her”, the judge challenged the mother´s right to do so. 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?”
If a judge asks a lawyer, party or witness to use another’s preferred pronouns in court like that, the request could be misunderstood as a demand — that is, a court order. This would lead to fear of being in contempt of court or being hauled before the law society for conduct unbecoming. What happens if a judge equates malice and insult from pronoun use accurately based on biological sex (as opposed to preferred pronouns) and threatens a charge of contempt?
I turn to a UK example to illustrate the point. In the UK, they have a similar pronoun practice direction. Recently, a complainant of an assault was repeatedly told by a judge to refer to her assailant using the female pronouns, when he was, in fact, a biological male. The judge is reported to have described the complainant´s pronoun infractions as “bad grace” when explaining his reasons for not awarding her financial compensation for the assault (although he could have done so). Sadly, the court compelled her to describe her evidence under oath in a way that hid reality instead of revealing the truth and to add insult to injury she was denied rightful legal compensation. My worry is that such a development could occur in BC given the new directive.
For privacy rights, not everyone wishes to have their pronouns — and thus their gender identity or expression — announced in public. Asking for pronouns is akin to “outing” someone publicly, conceivably against their will. The question potentially reveals their personal beliefs about themselves, and indirectly perhaps, their sexual orientation. This arguably constitutes a privacy breach. The question is and ought to be irrelevant to the court proceedings.
Finally, preferred gender pronouns are unavoidably controversial and they are not universally accepted. They are part of a larger socio-cultural and legal debate over subjective gender identity versus objective sex — that is, as a biological reality that conforms to scientific evidence. So, when the court shields one type of participant from being offended by the innocent, objective, and correct use of the English language, questions of favouritism inevitably arise.
This point is eloquently put by Judge Stuart Kyle Duncan in United States of America vs. Varner, Court of Appeals for the Fifth Circuit, January 15, 2020 at p. 8-9, “...if a court were to compel the use of particular pronouns at the invitation of litigants, it could raise delicate questions about judicial impartiality...the court may unintentionally convey its tacit approval of the litigant’s underlying legal position. Even this appearance of bias, whether real or not, should be avoided.”
Where truth and courtesy conflict, the court cannot subordinate truth to courtesy. The pursuit of truth is the entire edifice upon which our legal system is built. This practice direction is flirting with compelled speech in court, risking privacy breaches, and exposing itself to accusations of favouring one side in intense socio-political debates.
Shahdin Farsai is a litigation lawyer practising in Kelowna, BC.
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