Preventing Misgendering in Canadian Courts: Respectful Forms of Address Directives
Canadian Bar Review (Forthcoming)
32 Pages Posted: 26 Jun 2023 Last revised: 28 Jun 2023
Date Written: June 22, 2023
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
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