Preventing Misgendering in Canadian Courts: Respectful Forms of Address Directives

Canadian Bar Review (Forthcoming)

Ottawa Faculty of Law Working Paper No. 2023-08

32 Pages Posted: 26 Jun 2023 Last revised: 28 Jun 2023

See all articles by Samuel Singer

Samuel Singer

Faculty of Law, University of Ottawa

Amy Salyzyn

University of Ottawa - Faculty of Law; University of Ottawa - Common Law Section

Date Written: June 22, 2023

Abstract

Trans people face significant access to justice barriers and regularly experience discrimination within the Canadian legal system. In this context, respectful forms of address directives seek to prevent the misgendering of courtroom participants by having lawyers and parties proactively identify their titles and pronouns. Multiple Canadian courts have now introduced such directives.

This article situates forms of address directives as simply another control on courtroom speech that contributes to the fair, orderly, and efficient administration of justice. Drawing on examples, including the honorifics used for judges and the evolution of oath and affirmation requirements for witnesses, we detail how courtroom rules have evolved to reflect societal change. The article argues that forms of address directives are an important procedural tool to advance the administration of justice by facilitating equal access to the courts for trans people, providing consistency with the broader legal system’s recognition of trans rights, and facilitating the efficient and orderly administration of justice.

The article then counters arguments that forms of address directives constitute improperly “compelled speech” in violation of the Canadian Charter of Rights and Freedoms guaranteed free expression rights and addresses concerns that these directives may limit a lawyer’s ability to zealously advocate for their clients.

We conclude that forms of address directives are a simple and important mechanism to help address misgendering in courts while emphasizing that much substantive work remains to address trans people’s legal needs in Canada.

Keywords: misgendering, courts, trans rights, legal ethics, court procedure, freedom of expression, compelled speech

Suggested Citation

Singer, Samuel and Salyzyn, Amy, Preventing Misgendering in Canadian Courts: Respectful Forms of Address Directives (June 22, 2023). Canadian Bar Review (Forthcoming), Ottawa Faculty of Law Working Paper No. 2023-08, Available at SSRN: https://ssrn.com/abstract=4488499

Samuel Singer

Faculty of Law, University of Ottawa ( email )

Ottawa, Ontario
Canada

HOME PAGE: http://https://commonlaw.uottawa.ca/en/people/singer-samuel

Amy Salyzyn (Contact Author)

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur St
Ottawa, Ontario K1N6N5
Canada

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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