It is a hopeful time to be a gender diverse lawyer in British Columbia. All of our courts now formally recognise that counsel appearing before them might not identify with one of the gendered titles of Mr. or Ms. All counsel may elect to use the gender-neutral title “Counsel” to deemphasise gender. And non-binary lawyers — those of us who do not identify as exclusively men or exclusively women, and who might identify as neither — may go by Mx.1 The courts’ efforts to accord equal respect and dignity to all parties and lawyers, regardless of gender identity, are a remarkable and laudable achievement. Yet they presently stop just shy of the Bench.
Put simply, the British Columbia Court of Appeal (“BCCA”) and the Supreme Court of British Columbia’s (“BCSC”) ongoing use of My Lord and My Lady, among other binary gendered honorifics,2 signals that there is no place on their Benches for the growing number of openly non-binary lawyers who are now welcomed within the Bar. While these honorifics were not originally designed to exclude based on gender, they now have that explicit and visible effect: you cannot use a gender-neutral title and also be a Justice.
This is not the first or only cogent argument in favour of moving away from the use of gendered honorifics for Justices, but it is one of the most urgent, as we collectively seek a diverse and representative Bench. Many of the other arguments are well-known:
- The current forms of address unnecessarily emphasise the gender of Justices. The role of a Justice is to independently and impartially make findings of fact and law. Their gender is as irrelevant to that important task as their race, religion, sexual orientation, or any other personal characteristic. Yet gender alone is referenced every time a Justice is addressed.
- Repeatedly highlighting a Justice’s gender erroneously signals that gender is uniquely relevant information about the Justice — a lens through which to interpret their decisions.
- My Lord and My Lady have colonial origins that are out of step with the goal of reconciliation.
- My Lord and My Lady have classist origins, yet appointments to the Bench are made after a stringent merit-based assessment, not through hereditary privilege, as the terms imply.
- Shifting away from gendered forms of address for Justices in the BCCA and BCSC would improve synchronicity of practice among BC’s courts, as the Provincial Court does not use these terms. Synchronized practices among the courts reduce confusion and facilitate access to the court system for the general public by simplifying the processes.
- Alternative ways to respectfully address Justices are readily available, as demonstrated by courts from the Supreme Court of Canada to the Yukon.3
The most common argument in favour of continuing to use My Lord and My Lady in our courts is that they are part of our tradition and legal heritage, which are important. But as our society evolves, so too must our understanding of the impact of our traditions. In today’s British Columbia — where increasing numbers of people are at last finding it safe to be openly non-binary — the current forms of address for Justices are no longer benign traditions. Instead, they serve to actively exclude certain types of people from the Bench.
The importance of tradition ought not outweigh our substantive principles, such as equality before the law, access to justice, and a judiciary that reflects the population it serves. Continuing to use gendered honorifics for Justices makes these substantive principles subservient to the symbolic tradition. That’s upside down.
- Pronounced “mix.” | ↩
- Along with Your Lordship, Your Ladyship, and Madam and Mister Justice, and references to brothers and sisters by judges in referring to their colleagues. | ↩
- Supreme Court of Canada FAQ, How does one address a judge? Supreme Court of Canada — Frequently Asked Questions (FAQ) (scc-csc.ca); Supreme Court of Yukon, Practice Direction General-8, Addressing the Court, February 3, 2021: GENERAL_8_addressing_the_court_amended.pdf (yukoncourts.ca). | ↩