Trans Identity in the Courts
“It can be really difficult having to come out again and again in your life. So, having to just do it once and then have the lawyers who are representing you ensure that it is respected and protected is vital to making the courts a safer place.” – Jay Moch
On Episode 12: Trans Identity in the Courts – Mark Fancourt-Smith and Alix Stoicheff speak with lawyer Jay Moch on transgender inclusivity in the courts and how we can improve the judicial experience for gender diverse people.
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Don't have time to listen to the full podcast? Here's what this episode covered:
How does the practice of law use gendered language today? 01:22
How have the BC Courts addressed the issue of gendered language? 03:18
How should someone apologize when they've used the wrong pronoun for someone? 06:05
How can lawyers be advocates for their trans-clients outside the courtroom? 07:34
Transcript
Mark Fancourt-Smith 00:15
Welcome to Lawson Insight. I'm Mark Fancourt-Smith and I use the pronouns he/him. I'm a partner in the Litigation and Dispute Resolution group in Lawson Lundell is Vancouver office.
Alixandra Stoicheff 00:25
And I'm Alixandra Stoicheff and I use the pronouns she/her. I'm an Associate in the Calgary office, and I'm also in the Litigation and Dispute Resolution group. Thank you for joining us on our podcast brought to you by Lawson Lundell. On this episode, we will be speaking with Jay Moch an associate in our Corporate Commercial group, and Jay is in the Calgary office.
Mark Fancourt-Smith 00:44
While in law school at the University of Calgary, Jay was heavily involved in the legal LGBTQ+ community is the founder of the University of Calgary's PBSC Trans ID Clinic with the Stepping Stone Foundation. Jay is also a founding executive of the University of Calgary's OUTLaw Chapter. Jay’s involvement of the legal LGBTQ+ community has continued into this practice today. Jay is now a lawyer volunteer with the PBSC Trans ID Clinic and a sitting executive of the CBA, Alberta’s Sexual Orientation and Gender Identity Community (SOGIC). Jay, welcome to the podcast.
Jay Moch 01:17
Thank you, Alix, Mark, for having me. I'm very excited to be on podcast today.
Alix Stoicheff 01:22
I'm so to you recently did an internal presentation for our office about recent directions given by Canadian courts, particularly the B.C. Courts, with the goal of being more inclusive to transgender people. And you had started out with that presentation by pointing out the many ways in which there still is really gendered language in the practice of law generally. And I was wondering if you could speak to that a little bit?
Jay Moch 01:45
Absolutely. The practice of law is kind of overly gendered, we often used language to state genders when it's really not necessary. For example, in courts across the country, the practice is to call judges, My Lord and My Lady, which is outdated in itself. But it's also just overly gendered, especially when there is a gender neutral, alternative available. Also in contracts, they use the terms, you know, we often use the terms he or he/she, when it's not really needed. They also exist or them, which is much more gender neutral, and more welcoming for individuals who are gender diverse. You know, I recognize that there are times when you need to be specific as possible. But if there are situations where you can use gender neutral language, you should always take that approach. No, I know, for myself as a trans-individual, the legal profession, which is often considered very conservative, was a little bit scary to come into. And then hearing all these gendered language kind of just reinforced the idea that gender is alive and well in the legal profession. So this can often lead to individuals who are gender diverse, to not feel safe or welcome within the courts, or even just turning to the justice system generally.
Mark Fancourt-Smith 03:18
And it was in response to just those concerns that the Supreme Court of British Columbia and the Provincial Court of British Columbia have created a new policy, requiring lawyers to provide their pronouns when introducing themselves and their clients or witnesses in the Courts. So an example of the appropriate introduction is now “My name is Miss Jane Lee spelled LEE, I use she/her pronouns. I am the lawyer for mix Joe Carter, who uses they/them pronouns mixed being a gender neutral title”.
Jay Moch 03:49
The BC Courts have taken a great approach, putting a positive obligation on the lawyers to really lead the change. You know, a lot of this language, you know, I'm not a litigator, but from what the small litigation experience that I have had, the proposed introduction isn't much different than what lawyers are already doing. So we're just helping kind of normalize the process, make gender diverse individuals feel more comfortable sharing their pronouns. And then the most important thing is it's not singling anyone out. It's not kind of a red flag that somebody may be gender diverse, because they're sharing their pronouns. If everyone does it, it just becomes kind of an unconscious standard, which would be great.
Alix Stoicheff 04:38
Yeah. And Jay, and you alluded to this, but I think it's also important because it requires lawyers to take proactive steps, and to play a specific advocacy role in making sure that their clients are not misgendered by the court. And I think that that's an important obligation that lawyers are aware of particularly now in BC, with this new policy, but of course, lawyers across the country are free to do it without that directive being in place.
Jay Moch 05:05
Yeah, absolutely. You know, we're already taught as lawyers to stand up for our clients and witnesses on the stand. And just as important to be respectful to gender diverse individuals and ensure that everyone in the courtroom, even up to the judge is respecting those pronouns. And that our legal community as a whole is showing respect for gender diverse individuals, especially when we live in a world that is not set up for trans and gender diverse folks, it's often the people who are kind of left on the outskirts, not really sure where they fall. And it can be really difficult having to come out again and again in your life. So having to just do it once and then have the lawyers who are representing you ensure that it's respected and protected is vital to making the courts a safer place.
Alix Stoicheff 06:05
And you mentioned also in your presentation, some tips for how people can apologize and deal with situations when they've accidentally said the wrong pronoun for someone or forgotten to do introduce themselves with a pronoun, and I found your explanation of the respectful way to apologize really interesting.
Jay Moch 06:21
Yeah, I think as Canadians we have a tendency to over apologize for things, especially if you miss gender, someone or dead name them. We are aware that it can be emotionally traumatic for that individual. And, you know, being good to people, we want to apologize as much as we can, but often we end up making too big of a deal out of it. You know, for example, if someone were to call me she instead of him, I've had experiences when people have been like, “Oh my gosh, I'm so sorry. You know, I support trans rights. I'm, I'm a supporter…” and everything like that. And then that kind of shifts the onus and puts it on me to say, “No, it's okay. It's fine. I know, I know, you didn't mean it. I know you're a good person”. But really, it hurt it. I didn't like it, and it wasn't fine. So short little acronym that you can use to remember is SCRAM. So Stop, Correct yourself, Recognize you've made a mistake internally, Apologize, and then Move on. You know, you don't just say, “Oh, I'm sorry, he.” Done, end of the conversation. You don't have to make a big deal.
Mark Fancourt-Smith 07:34
Jay, you're involved with the Trans ID Clinic in Calgary, and you do a lot of work to educate people in Calgary about these issues. What are some of the ways that lawyers can be advocates for their trans clients outside the courtroom?
Jay Moch 07:46
So there's a lot of things that lawyers can do, the amazing organization that I work with through the trans ID clinic, the Skipping Stone Foundation, they have seven core affirming actions. So I'll just kind of highlight the ones that I think are really important to remember, just in your everyday life, not just as lawyers, but as good human beings. So don't make gender assumptions. We have this idea in our society of what is male and what is female. But gender identity does not necessarily conform with the standards. So if you look at someone and you think, Oh, well, they're how they're presenting themselves based on society standards is a male, they may not identify that they may be gender diverse. They may be identify as she or they are them. So because you can't make gender assumptions, you need to make sure that you ask for and use pronouns. Just like in the courts. If you have a client who is gender diverse, you want to respect their pronouns outside of the courts, even when you're not under the eye of justice. You want to make sure that you're respecting their pronouns and using them when needed. Again, if at all possible use gender neutral language, you want to include non-binary and gender fluid individuals in the conversation. And our society really isn't set up for that we like to think of everything in binary boxes. But there's people who don't fall in those boxes. So if you can use gender-neutral language as much as possible. Be careful with dead naming someone so this is using someone's birth name, and not their affirmed name. So the name that they choose to identify by. Dead names can be very emotionally traumatic. So you need to be aware of when you're using names and only use their birth name or when absolutely necessary. And then grow from your mistakes and apologize. You know, we're all humans. We're all going to make a mistake. Remember SCRAM, apologize, recognize your error, and move on. Some other ways that you can help make the world just a better place as lawyers, is educate yourself. You know, take a class in gender diversity and help learn the terms and lingo commonly use, like what is dead naming someone to help yourself grow and kind of get a better understanding of where gender diverse individuals are coming from. And get involved with the community as much as you can. The Calgary Bar especially and across Canada, has a lot of organizations that you can get involved in to assist the community in Alberta, and in Calgary SOGIC. Join, you can get a lot of free education through there. And also just kind of build the network to help you become a better advocate. And then, one of the I think most important steps, and probably the easiest one to do on a daily basis is normalize using your pronouns. So in your email signatures, put your pronouns if you're comfortable with doing it, again, oftentimes, nowadays, if someone uses their pronouns, people assume they may be gender diverse. But if everyone starts doing it, you're not putting a red flag or a target on someone's back. Because it just becomes an unconscious standard.
Alix Stoicheff 11:29
Jay, thank you very much for coming on the podcast today. And also for being willing to speak about these issues within the office and individually. In saying that, I'm conscious of the fact that the burden of educating people about some of these issues often falls upon the people for whom it's an emotional experience or an exhausting experience. And I just want to thank you very much for taking the time to teach us about these things today. I'm really grateful.
Jay Moch 11:53
Yeah, absolutely. I'm always happy to discuss these issues with people. I think it's really important to educate, especially having that education come from somebody who has first hand experience. So I'm always happy to discuss with anyone really.
Mark Fancourt-Smith 12:12
Thank you for joining us on LawsonInsight. And thanks again to Jay mock for joining us today.
Alix Stoicheff 12:17
And for more information, please visit our website at lawsonlundell.com. You can also stay up to date by connecting with us on social media using the handle @lawsonlundell, and by subscribing to the podcast on Apple, Spotify or Google podcasts. Thanks for listening!
About LawsonInsight
Hosted by partner Mark Fancourt-Smith and associate Alix Stoicheff, LawsonInsight is a look inside the legal mind. If you would like us to cover a particular topic, please email your requests to inquiries@lawsonlundell.com
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