Allan Stratton: Supreme Court should stay out of the genital wars

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The Supreme Court of Canada has swapped gender identity for biological sex. To add to the shock, in a ruling earlier this month, the court did so during a brief aside that was unrelated to its reasoning or decision. However unnecessary, this intervention is now a part of Canadian case law.

The appeal before the court in R v Kruk was simple. Christopher James Kruk had been found guilty of rape at trial. The trial judge in his case wrote, “(The complainant’s) evidence is devoid of detail, yet she claims to be certain that she was not mistaken. She said she felt (Mr. Kruk’s) penis inside her and she knew what she was feeling. In short, her tactile sense was engaged. It is extremely unlikely that a woman would be mistaken about that feeling.”

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Kruk’s lawyers appealed, arguing that individual cases shouldn’t be decided based on general beliefs, such as the belief that women will generally know when they are experiencing penile penetration. (Ironically, in sexual assault cases, a similar rule has usually been applied to prevent the use of rape myths to discredit victims.) The B.C. Court of Appeal accepted this argument and overthrew the conviction.

The Crown then took the case up to the Supreme Court, whose sole job was to determine if the courts below had erred in law. Defence argued that the trial judge “was not entitled to reach outside of the evidence and rely without notice on his ‘common sense’ as to what a woman would necessarily feel.” The court, however, disagreed: Justice Sheilah Martin noted that, “It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence.” Kruk’s conviction was reinstated.

That should have been it. But Justice Martin went further. She had already written that the trial judge’s use of the words “a woman” was “unfortunately worded.” Now, she wrote:

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“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 because people generally, even if intoxicated, are not mistaken about that sensation. In other words, the judge’s conclusion was grounded in his assessment of the complainant’s testimony.”

In other words, “a person with a vagina” is the Supreme Court’s view of a clear and proper way to express the apparently confusing and unfortunate words “a woman.” This isn’t about inclusive language. It is about giving definitions rooted in gender theory the force of law. A further, obvious problem, in terms of the case before the court, is that “a person with a vagina” is no more specific nor less an assumption than “a woman.”

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In fairness, I don’t believe that the court consciously set out to make fundamental changes to legal precedents or achieve through the back door what hasn’t been achieved through the front. Instead, I expect that like so many of our institutions, the Supreme Court is so immersed in such thinking that it evidently didn’t occur to anyone on the bench or among their staff that its position was in any way exceptional.

Most Canadians are happy to use whatever pronouns and social accommodations are necessary to relieve the pain of dysphoric trans people. But they don’t believe what activists demand: That trans women are literal women and that transmen are literal men.

Yet this, surely, is the only way in which Justice Martin’s preference for “a person with a vagina” makes sense. The word “woman” excludes women with penises (aka transwomen) by referencing vaginas. Similarly, it also excludes men with vaginas (aka transmen) by referencing “a woman.”

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This Alice in Wonderland fight to control language is a key battleground in contemporary culture wars. It belongs in the world of politics, not in courtrooms — and certainly not in Supreme Court rooms. Judges must be seen to be impartial if we are to have faith in our justice system.

Justice Martin has demonstrated bias against the vast majority of women for whom biology is central to their self-understanding and experience. She has also demonstrated bias against lesbians (and gay men) for whom biological sex is definitional to same-sex attraction and our long, hard fight for civil rights and equal marriage.

It is self-evident that a judiciary that can reconceptualize a basic word like “woman” from its use and understanding across the globe and throughout millennia cannot fairly adjudicate cases involving the sex-based Charter rights of women in matters of sport. Nor the religious Charter rights of Muslim and Jewish women when it comes to change rooms. Nor, indeed, can it be trusted to dispassionately adjudicate politically adjacent culture war issues.

The damage done by this kind of Trojan horse language extends to trust in other justice-adjacent federal institutions, such as our human rights tribunals. Nor could the timing have been worse, given widespread fears about the silencing of Canadians’ ability to think and speak freely under the government’s new and Orwellian Bill C-63, the online harms act.

In short, the brief but consequential aside in this Supreme Court judgment adds to our current epistemic collapse and faith in our basic institutions. People have rightly criticized Ontario Premier Doug Ford for saying that he wants to appoint ideological conservatives to the bench. Yet those completely reasonable complaints lose force when the decisions of our Supreme Court make such a compelling case for the need for political balance on our judiciary.

National Post

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