In this article written for The Advocates’ Society Advocacy Matters, Tamara Ramsey pays homage to satirical articles from the Honourable Marvin Catzman and comments on the importance of hyperlinking court materials in the electronic era.
January 17, 2023
In the Summer 2002 Issue of The Advocates’ Society Journal, the Honourable Marvin Catzman provided his “Losing Tip No. 12: Fling their own words back at them”, which was part of an entertaining and insightful series of losing tips that started with his piece: “The Wrong Stuff: How to Lose in the Court of Appeal.” I am revisiting “The Wrong Stuff” to see what holds true and share some of the new ways you can lose in the electronic era.
With reference to an unnamed judge in a hypothetical scenario about how judges’ words are recorded, Justice Catzman used the pronoun “she” and in his notes stated: “I wrestled with this pronoun. As you recall, I use "she" and "her" when referring to nice people, and "he" and "him" when referring to the other kind. But, for the life of me, I couldn't figure out whether adjournments and washroom breaks fall on the nice or the not-nice side of the line. So I flipped a coin, and it came down "her." If anyone takes offence, please read it as if it said "him" instead.”
Twenty years later, we still struggle with pronouns in legal writing (and in society more broadly). This struggle is not limited to an unidentified judge in a hypothetical scenario. Pronouns confound the grammar nerds among us who hate using “his or her” but struggle with using the plural “their”1 in place of the singular. “They went to the washroom” may be jarring, but it is no more jarring than “He or she went to the washroom”.2 While we can use “she” for nice things and “he” for not-nice things like Justice Catzman satirically suggested, we all need to use the washroom at some point.
Historically, the masculine pronoun was used in the English language to signify the non-specific “he or she”. While we generally recognize that it is no longer acceptable to use the masculine pronoun universally, we still struggle with writing acceptable alternatives. Together with using non-discriminatory language3, one important tool to address this struggle is to not make gender visible when it is not relevant for communication.4
Below are some helpful tips on how to tweak your language to make gender invisible when it is irrelevant:
Sometimes, gender is important to the communication and to the individuals to whom the communication is addressed. Using the correct prefixes and pronouns is respectful.6 As an example, in an update to incorporate more accessible and inclusive language in court proceedings in Ontario, in collaboration with the Court of Appeal for Ontario, the Ontario Superior Court of Justice, and the Ontario Court of Justice, Court Services Division (“CSD”) provided notice that:
As a further example, TAS developed guidance to TAS leadership, committee members, and staff about the use of gender-inclusive language, including pronouns, within the day-to-day work of the Society.8 TAS recognizes that the use of gender-inclusive language, including a person's correct name and pronouns, is fundamentally about respect, human dignity, and equality. When it comes to the use of pronouns, TAS generally adopts a “lead by example” or “encouragement” approach. Where someone offers their pronouns, we should respect and use them.
Finally, use gender-neutral terms.
|Dear Sirs, Dear Mesdames or Dear Sirs and Mesdames (in a letter or email to colleagues)||Dear Counsel or Dear Colleagues or Dear All|
|businessman||business executive / entrepreneur / business person|
|waiter / waitress||server|
|wife / husband||partner / life partner / spouse / significant other|
|father / mother||parent|
|maternal / paternal||parental|
|secretary / girl||assistant / legal assistant|
While many still wrestle with pronouns, the English language and social norms continue to evolve. Remember to (1) avoid gendered terms where gender is irrelevant, (2) use the correct pronouns and prefixes when gender is relevant, and (3) always opt for gender-inclusive language.
1 I mean “their” and not its oft-confused homophones “there” and “they’re”
2 Let’s not get started on the lack of gender-neutral bathrooms
3 As a useful starting point, see the Government of Canada resource on Gender-neutral Language.
5 More on this below
6 See, for example, A Guide to Being an Ally to Transgender and Nonbinary Youth published by The Trevor Project: https://www.thetrevorproject.org/resources/guide/a-guide-to-being-an-ally-to-transgender-and-nonbinary-youth/; University of Victoria, What we all can do to support trans, Two-Spirit and non-binary people. Egale, Pronoun Usage Guide