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I am appalled at this transphobic and completely legally inaccurate article published in @CanLawMag https://www.canadianlawyermag.com/news/opinion/british-columbias-practice-directions-on-preferred-gender-pronouns-in-court-are-problematic/337574
First, the notion that using someone's preferred pronouns is compelled speech is absurd. In court we use all sorts of strange language that we would never use in real life, and no one has ever complained that calling a judge "Your Honour" is some form of compelled speech.
"Oh I don't like how that judge rules so I'm not calling him Your Honour. Instead I'll call him Your Asshole" is just, like, not a thing that anyone does in court.
Second, there is authority for the proposition that some Practice Directions may have the force of rules of court. See, for example, the recent analysis in R. v. Bernard, 2021 BCPC 13 where the PDs related to COVID-19 were found to be part of the CCFM rules.
Third, there is not absolute privilege for what you say in court in the way the author frames it. If you use words in bad faith, that does not attract absolute privilege. Further, as Groia taught us, what you say in court can still attract professional disciplinary proceedings.
I don't believe the question of a human rights violation based on the words spoken by counsel has been tested in court. The human rights code protects gender identity. But let's imagine it in another context.
Say a bona fide white supremacist will only refer to a POC opposing counsel as a racial slur. I am reasonable certain that the honestly-held belief that the POC is a lesser human would not shield the white supremacist from human rights sanctions.
This is no different than that. It is using something that is derogatory and demeaning to the individual, regardless of whether you intend to harm them or honestly (wrongly) believe that gender is about what junk you were born with.
At the very least, you'd get costs awarded personally against you, probably be found in contempt, and certainly be subject to swift and severe disciplinary action from LSBC. So there is no absolute immunity to say whatever the fuck you want.
Speaking of fuck, you also can't call opposing counsel or their client a "fucking idiot" in court, even if they actually are an idiot.
The absolute privilege in court has been a shield against DEFAMATION claims.
It's also absurd to suggest that your clients' case could be harmed by referring to someone by their preferred pronouns. Judges can disabuse their minds of that, the same way they hear about trunkfulls of cocaine and then acquit after Charter breaches.
Judges are well-equipped to separate courtroom language from counsel's position. And in the cases where people have tried to litigate over someone else's gender (imagine!), the courts have already directed that the person's preferred pronouns be used (see: AB v CD).
In fact, those cases provide support for the fact that the Practice Direction is simply a codification of existing case law about how gender expression is to be dealt with in court. Meaning that this is already the law.
It's gross that the author says this is outing people. People who want to remain in the closet can do so. You're not required to use the pronouns you really believe accord with your identity. You're simply asked to advise your preference.
Theoretically, you could tell the court your pronouns are anything in the world and the court would respect that without further inquiry. It's not an inquisition into whether that matches what's in your heart.
And WTactualF is with the reference to sexual orientation? Last I checked, the issue of whether your junk at birth matches your gender has nothing to do with who you want to put your current junk into, onto, or around.
As for the judicial impartiality argument, using preferred pronouns as the barest of courtesy does not show a judge is biased in any way. The test of the question of judicial bias is really stringent.
The test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude?" And no one who is informed of the fact that this is standard practice in all courts in BC would determine a judge is biased for this.
Finally, framing this as truth v. courtesy in the closing clearly exposes the author's transphobic biases.
