What’s in a Name (Or Pronoun)?
This blog post is part of a series on “SCC Decisions and more” written by CIAJ’s collaborator James Hendry. Read all his posts here.
What’s in a Name (Or Pronoun)?
I recently noticed headlines that the Federal Court of Appeal had set aside an interim Order staying the removal of Colin Ewen because the Motions Judge had raised an issue about gender pronouns. I want to explore how this judge tried to bring human rights law into a legal proceeding to adapt legal language to the context of a broader understanding of gender diversity.
The judge had noticed the government submissions used the gendered pronouns “he/him” as well as the gender-neutral “they/their”. The judge admitted to surprising the parties by asking federal counsel whether use of gender-neutral pronouns violated Ewen’s Charter rights on the ground of gender identity. The judge asked how Ewen identified by pronoun. “As a he” Ewen said. The judge asked whether using “they/their” affected his dignity. Ewen responded “kind of,” because it did not directly refer to him. The judge granted the Order to allow for submissions on the Charter issue. The Order effectively postponed Ewen’s removal.
De Montigny CJ wrote strongly worded reasons for setting aside the Order. Recent Supreme Court guidance about an appellate court’s jurisdiction to raise new issues held courts may use their discretion to prevent an injustice on a sufficient record and where the parties were not prejudiced. The judge had erred here. Though self-represented, Ewen had not raised the issue and provided only a “tentative” answer to the judge’s question about the effect of the pronouns on his dignity. The government was prejudiced by the surprise issue and the practical impact on its ability to enforce removal of the time granted to provide written submissions.
De Montigny CJ emphasized the lack of the necessary factual Charter record on the s. 15 issue about gender identity. He noted that there was not enough room in “stripped down” urgent stay proceedings for an appropriate definition of Charter issues, for the filing or cross-examining on evidence or a claim for a s. 24 remedy. Further, the judge had no jurisdiction to make a Charter declaration on an interim motion. The Order might not be appealable. A judge’s pursuit of equality during proceedings should not risk the appearance of impartiality by raising an issue of their own. De Montigny CJ decided not to remand the matter because Ewen was no longer subject to imminent removal.
The issue of names and pronouns
The Motions Judge in Ewen’s case was engaging with the dignity and linguistic issue of names and pronouns that is becoming properly recognized in society and in the law.
We speak with other people in our society as individuals using names and pronouns that reflect characteristics that are basic to our individual dignity, such as our sex, sexual orientation, gender, ethnic origin. If we mistakenly refer to a man as a woman, we normally correct ourselves. Surely, once we are aware that we are improperly addressing a person with another gender identity, the same civility requires us to correct our error.
Society must accommodate the understanding that gender is much more diverse than previously recognized. The Supreme Court has recognized that trans persons are among the most disadvantaged in our society. The Supreme Court notes that the Superior Court of Quebec has held that gender identity is an analogous ground under s. 15 of the Charter.
Tribunals have found misgendering can be discriminatory. For example, the repeated misgendering of a trans person, exacerbated by gendered nicknames, culminating in dismissal was discrimination on the ground of gender identity and expression. The Tribunal noted that discrimination is based on effects and does not require proof of intent. However, the conscious and repeated misgendering by another employee made this kind of discrimination easier to prove. But interestingly, a person’s correction of misgendering might reduce its harm.
A Saskatchewan court issued an interlocutory injunction preventing the government from instituting a policy in the schools that requires parental consent before a student under 16 is entitled to use a preferred name, gender identity and expression in the school system, including pronouns, pending a determination whether it breaches ss. 7 and 15 of the Charter. The court was presented with significant evidence that the failure to use name and pronoun changes adds to the very harmful impact gender-diverse students experience at school and to the general negative effect of societal reaction to this vulnerable group. The court found the evidence forcefully demonstrated irreparable harm to affected students. In response, the Saskatchewan legislature enacted its policy in a Parents’ Bill of Rights by amending the Education Act, 1995 and by subsections 197.4(3) invoked s. 33 of the Charter and (4), excluded it from protections provided by the Saskatchewan Human Rights Code, 2018.
The severe reaction of the Saskatchewan government to this issue is a part of the wave of dissent against what some perceive to be forced expression contrary to freedom of expression. No doubt there will be challenges to requiring the use of gender diverse pronouns in the future. But we are already used to addressing some as Mr., Mrs., and Ms., based on the intersection of their individual gender identity and marital status. How can extending this to other gender identities be unreasonable?
Courts and tribunals have shown their sensitivity to the issue of proper names and pronouns as a matter of respect for participants in the legal system. For example, the Federal Court of Appeal invites (para 46.1) counsel and parties to provide their proper names and pronouns at hearings.
The headline I referred to earlier drew attention to the appellate decision to set aside the interim Order in Ewen’s case. My brief survey shows the context in which this judge attempted to use the breadth of the language of the law address an individual respectfully in these proceedings, an issue that is bound to recur often in future cases.
***Not for use as legal advice