00:00:08.120British Columbia's practice directions on preferred gender pronouns in court are problematic.
00:00:13.920Now, this was published in Canadian Lawyer, a magazine that deals with issues of relevance to the Canadian legal community, as the publication's title would suggest.
00:00:23.400And it sounds like if a court is putting in place a policy that affects lawyers, that perhaps different perspectives on those would be a good idea.
00:00:31.560I'm glad the magazine ran the article.
00:00:35.920An open letter was published calling out this as being problematic itself, despite the fact that it was calling out behavior that was problematic in another way.
00:00:51.920They yanked the article and put up in its place an apology, saying that it did not reflect the views of Canadian Lawyer magazine, Key Media, and its related entities.
00:01:01.440That's signed by Tim Wilber, the editor-in-chief for Law of the Canadian Lawyer magazine.
00:01:09.560You may know him on Twitter as the litigation guy.
00:01:12.200And he was very clear in pointing out this open letter calling for the article's withdrawal, all the names of lawyers that apparently don't support free speech.
00:01:25.140So I want to—there's two aspects to this.
00:01:27.800There's the initial discussion about pronouns, which we'll get to in a moment.
00:01:31.700But I'd say the bigger issue now is that a magazine that you'd think would have differing perspectives, would have even dueling perspectives on key issues that are relevant to lawyers, is now memory-holing one side of the argument.
00:01:44.920Yeah, I mean, Canadian Lawyer magazine is traditionally a pretty moderate, up-the-middle publication.
00:01:51.660What we see here, though, is that not only are they going to fall victim to the mob in terms of the pressure to remove a particular article,
00:02:00.100but it would seem to me that they're not prepared to publish anything outside of what I would venture as a very narrow, defined, and I would even say radical ideology.
00:02:08.980One of the things that I would point out is that the magazine does not have the final say on what Canadian lawyers think.
00:02:16.100But I'd say that industry publications have always been, I thought anyway, or should have always been,
00:02:21.780the last bastion of being able to hash out what are intra-industry battles and really discussions and debates that lawyers could talk about
00:02:30.880because they're all operating from the same basis and on the same wavelength, at least in some areas, you'd hope.
00:02:37.740And at the same time, I find that quite distressing because when you're talking about these things,
00:02:42.920what a bunch of the lawyers who signed that letter were saying is that, you know what,
00:02:46.980we're not allowed, even us as professionals, to have these discussions.
00:02:50.820Yeah, I mean, it's evidence of sort of the ideological capture that's happened in the legal profession.
00:02:59.820The profession itself is increasingly becoming a monoculture, one that is subscribing to sort of one side of the politics,
00:05:49.380And their only reaction that they have in that instance is, rather than engage with the arguments and deliver the counterpoint, was to memorable it.
00:05:59.020Yeah, and that was, I found it interesting when I was just scrolling through to see if I knew any of the names.
00:06:05.880The lawyer who fought against True North and I, True North and me in the Leaders Debates Commission case against the government was on there.
00:06:12.840So, I mean, that's the only personal connection I have to anyone on this list, is someone that was on the wrong side of another issue.
00:06:18.000But you are very right when you point out that there's a risk here.
00:06:22.700And I saw a lot of articling students that were naming themselves as such that I'm looking at them like, you're coming into the legal profession from a place of we should not be standing up for diverse perspectives.
00:06:34.860And that makes me very pessimistic about the future of the profession.
00:06:38.840Yeah, I mean, like I said, the legal profession is not immune to what we see going on in wider society with the outlawing of certain viewpoints, particularly those that would be more, I guess, centrist or right of center even.
00:06:53.100But what was most shocking to me is that it wasn't simply a group of lawyers that signed that article, but they were lawyers from major law firms, Bay Street law firms.
00:07:02.340And I guess, you know, I put that list up, that joint letter up.
00:07:07.820I did so because I think it's important that the public realize that the profession has been captured at its highest levels and that, you know, when their back is up against the wall, I'm not sure you can look to some of these law firms and some of these lawyers to sort of be the bulwark against tyranny and oppression that the legal profession used to be.
00:07:30.960Yeah, and I don't want to focus entirely on Canadian lawyer magazine because I feel that the point of the op-ed in question, even if, as you know, you might not agree entirely with what's being said, was an important issue.
00:07:44.280And this was a practice directive issued by the B.C. Supreme and provincial courts to lawyers that require parties and lawyers to state their preferred gender pronouns at the beginning of all court proceedings.
00:07:56.320And that's where, in the context that the author of the piece brings it up, there's a potential violation of privacy rights, there's a judicial impartiality issue, and there's a compelled speech.
00:08:07.000You now have to say something as part of this.
00:08:09.720We don't have this in Ontario, and you actually were instrumental in a group to take over the Law Society of Ontario Board of Governors, basically, the benchers, as they're known, to try to put in a very robust fight against compelled speech.
00:08:24.100But when you see something like this coming down the pipe, I mean, what's your response?
00:08:28.900Yeah, I mean, it's a sensitive issue, and it's a deeper issue than what it appears to be on its face.
00:08:34.740It's positioned as one of, obviously, respect for the individual litigants and participants in the judicial process.
00:08:40.420And I think we'd all acknowledge that there needs to be some modicum of respect, and also I think that the courts absolutely have the authority to sort of control their own process and those that appear before them.
00:08:51.480The problem was is that this was making the issue of pronouns, pronouncing an edict on what I would say is a highly political and I would even say controversial issue.
00:09:01.160And that is this idea that, you know, implementing, I guess you could call it the social constructionist theory on gender.
00:09:07.640I mean, not everybody subscribes to that.
00:09:10.280And when the court decides to take a position on those issues, highly political issues, then it's right that we have this discussion, that we have this debate, and that it should and ought to play out in the pages of Canadian Lawyer magazine.
00:09:23.780As it stands right now, the court can and will make directives as to how you address certain participants in the proceedings.
00:09:31.580The difference was, though, that this one, this directive requires that everyone walk into court and identify their gender identity at the outset of the proceedings.
00:09:42.660And, you know, as the article points out, you know, that's problematic on a variety of levels.
00:09:48.620And perhaps the court didn't consider that when it pronounced that edict.
00:09:53.940But, yeah, I mean, setting aside simply the compelled speech argument, we should be able to have this discussion about whether or not the courts should be making these orders.
00:10:04.920And the article points out some interesting examples as to when that could jeopardize the impartiality of the court.
00:10:12.260I mean, there's the instance that they mentioned the case over in the UK where a victim of rape was directed to refer to her attacker by female pronouns when, in fact, the attacker was a biological male.
00:10:28.500You can see where that would be an issue.
00:10:30.580It's almost as if the court is prejudging the issue.
00:10:33.060Yeah, and that was when I first heard, before I even saw the magazine essay, when I first heard of this directive, the concern that I had is what if the issue of pronouns or gender identity were central to the case?
00:10:46.300And I don't want to dwell on hypotheticals, but I could see a number of cases where, including one, by the way, in British Columbia, where forcing someone in the court proceeding to be referenced a certain way would actually get to what was in part the pith of the case itself.
00:11:05.880And I mean, that's the most obvious example of where this would be an issue.
00:11:09.740And I mean, the courts already traditionally had the tool to deal with that.
00:11:13.880They were allowed to step in in the middle of or at the beginning of a proceeding and give a directive one way or the other.
00:11:18.920And we were trusting the bench to deal with the issues that come before them as they come.
00:11:24.580But now with a directive from on high, you're requiring all courts to start the proceeding in this way.
00:11:30.640And I mean, it's obvious why that's going to be an issue.
00:11:33.880But more than that, like I said, it shows a lack of confidence in the bench to be able to deal with these issues delicately and appropriately and respectfully as they arise.
00:11:42.980Yeah. And beyond that, going back to the yanking of this column, it shows an inability or an unwillingness for people to entertain that, hey, when something like this is coming in the context of a social or political debate, you should be able to hash that out and not have one side just summarily censored by the other.
00:12:03.720Well, you would hope so. You would think that the law would be the last bastion of the freedom of speech, freedom of conscience.
00:12:11.480You'd think that we would continue to be that bulwark against the state encroachment on our rights.
00:12:18.600But unfortunately, like I said, the legal profession is not immune to what we see happening in wider society.
00:12:23.820And there is an increasingly illiberal, I would almost say authoritarian perspective.
00:12:32.200And it's happening, as we just saw in that joint letter, across all levels of the profession and right up into the highest towers in law firms.
00:12:41.720D. Jared Brown is a lawyer with Brown Litigation and also a bencher with the Law Society of Ontario.
00:12:48.000Jared, thanks so much for coming on today. Great chatting with you.