Just say ‘woman’
WE DIDN’T NEED ‘PERSON WITH A VAGINA’ ADDED TO THE LEGAL VERNACULAR
The term “person with a vagina” made its legal debut in Canada last Friday. It’s inclusive-speak for “woman,” and now it’s part of the vernacular of the Supreme Court.
The decision in which it was used, R v. Kruk, dealt with sexual assault, and whether it was correct in law to assume that women know when they are being penetrated by a penis. The answer turned out to be yes, as one would imagine, but the reasoning to get there took a bizarre route. Writing for all judges (except for Justice Malcolm Rowe, who wrote a concurring opinion), Justice Sheilah Martin wrote:
“Where a person with a vagina testifies credibly and with certainty that they felt penile-vaginal penetration, a trial judge must be entitled to conclude that they are unlikely to be mistaken.
“While the choice of the trial judge to use the words ‘a woman’ may have been unfortunate and engendered confusion, in context, it is clear the judge was reasoning that it was extremely unlikely that the complainant would be mistaken about the feeling of penile-vaginal penetration.”
This wasn’t a ruling on how to properly identify the sexes. Indeed, what it was trying to do was make the distinction between women in general, “a woman,” and a particular woman at the centre of the case. But the effort to dispel any confusion did not pay off, and the passage ended up puzzling lawyers and laymen alike. While the decision mentioned the word “woman” more than 20 times, in one instance, it opted to crudely identify people — in this case, the victim of a rape — by their genitals. The vocabulary used isn’t central to the case, but it’s still noteworthy, given that it was deliberately chosen.
To gender ideologues, this is “inclusionary language.” The same goes for “chest-feeding parent” (a term used by Alberta Health Services and others), or “menstruators” (used by Women and Gender Equality Canada). This is because, to them, manhood and womanhood are two ends of a gender spectrum along which any person can identify at any time, regardless of one’s physical body. It’s not fair to tie gender to biology, goes the thinking, as it will end up excluding some of the 0.3 per cent of Canadians who identify as transgender.
And the Supreme Court is buying it. Writing in May on a decision relating to a defamation proceeding, Justice Andromache Karakatsanis related the tenets of gender ideology as if they were fact.
“While gender was once understood only in the binary of ‘male’ or ‘female,’ today, society’s understanding of gender has broadened to encompass a spectrum of gender identities, modes of expression, and related terminology, all of which continue to evolve,” she wrote.
In the same decision, any articulations of the binary understanding of sex and gender were presented as quotes from a party to the case. The court was careful to avoid writing about gender as if it had anything to do with biology.
Belief in the binary nature of men and women isn’t universal, but it is the dominant view in Canada. In 2023, Angus Reid found that just over half of Canadians believed humans are either male or female; when considering just men, that proportion rises to two-thirds. As for the matter of transgender persons accessing opposite-sex washrooms and sports programs, Canadians are very roughly divided in half.
Meanwhile, on single sex-imprisonment (that is, the maintaining of all-female prisons that don’t accommodate transwomen), Macdonald-laurier Institute polling found last year that nearly 80 per cent of Canadians believe it’s important to segregate prisoners by sex. So, even if just over half claim to believe in the sex binary when asked, the faith of non-believers grows strong when considering vulnerable women confined by the state.
What the Supreme Court demonstrates again and again is a set of scales tipped toward one side of this issue. If you believe that men are male and women are female, you can’t realistically expect the top court to hear you out as it would a gender-spectrum believer. That’s a problem, especially now that philosophical debates increasingly play out in the courts.
In Alberta, Saskatchewan and New Brunswick, legislatures are using their power to put up responsible guardrails in schools to limit teachers from socially transitioning children without parental knowledge and consent. These moves are being challenged by activists who believe deeply in a spectrum of non-biologically-related genders — and the ability of minors to participate in that belief.
Governments that make such moves are up against a system — and a top court — that agrees with these activists. Indeed, it’s not unheard of for judicial conferences to hold seminars on identity-related issues pertaining to gender, as was the case in the National Judicial Institute’s 2022 conference on international judicial training, and in more minor events such as a Canadian Bar Association seminar on transgender access to justice.
Even in the United Kingdom, where judicial training documents acknowledge the validity of “gender critical” views — referring to the belief in a sexual binary — judges are advised that acting on such beliefs and “misgendering” a trans individual can amount to illegal harassment. Critics note that the U.K. training documents also use the language of gender ideology “without warning judges that these are claims based on a contested ideology.”
In Canada, the status quo isn’t great, because the half of us who don’t buy into the concept of a gender spectrum completely debased from binary, biological sex, can’t expect to be heard fairly should we ever end up in court over the matter.
If Bill C-63, the online harms act, ever ends up making it onto the books, we can only expect it to get worse. The law exposes anyone who “foments hatred” of marginalized groups — including those who self-identify on the gender spectrum — to the grasp of human rights tribunals, which are informed by the SCC and which can end up sending cases all the way up there, too.
Nay-sayers will shrug off this latest SCC ruling as a nothing-burger — just an instance of clumsy language. But, just as the federal government writes on the topic of “2SLGBTQI+ allyship in language,” words matter. If you ever end up having to defend your beliefs in a court that has judicially pioneered the phrase “person with a vagina,” good luck.
THE COURT WAS CAREFUL TO AVOID WRITING ABOUT GENDER AS IF IT HAD ANYTHING TO DO WITH BIOLOGY.