Inclusive Justice for LGBTQIA+ Persons
Sensitising Judicial Officer’s on the use of pronouns
By: Magistrate Chisholm Davin Noble (He/Him)
Introduction
The concept “LGBT Pride” also referred to as “Gay pride” or simply pride, promotes the self-affirmation, dignity, equality and increased visibility of lesbian, gay, bisexual, transgender, queer, intersex and asexual (LGBTQIA+) persons as a social group. The word “Pride” is the predominant outlook that reinforces most LGBTQIA+ rights movements and stands in stark contrast to “Shame” and social stigma[1].
In June every year, we celebrate International Pride month, which made me ponder on the question, whether we as Judicial Officers in the course of our daily duties, practice inclusive justice in relation to LGBTQIA+ persons, through acknowledgment of their individuality, regarding unique preferences, of the use of pronouns. Experience teaches that the pronouns preferred by certain LGBTQIA+ persons are often viewed as perplexing, with the result that its importance is more than often simply ignored.
In an endeavor to promote dignity and equality for LGBTQIA+ persons, I propose that there is a need for more understanding of the use of appropriate pronouns in our courts, in order to demonstrate inclusivity in dispensing justice.
South African Context
In 1994, during his inauguration speech as the first President of democratic South Africa, the late President Nelson Mandela made the pronouncement that in terms of South Africa’s new Constitution, the law will provide for equal protection of all citizens, irrespective of colour, gender, religion, political opinion or sexual orientation. Indeed, the right to equality is firmly enshrined in section 9 of the Constitution[2] which provides -
Section 9 Equality:
1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. [My emphasis]
Compared to some parts of the world, the South African Constitution and laws, are no doubt progressive in affording equal rights for LGBTQIA+ persons[3]. Nonetheless, in daily practice, there is room for improvement, if “justice is said to be seen to be done”.
Why is it important to ask someone’s pronoun?
In South Africa, the norm to address persons appearing in our courts, is either “Mister” referring to a male, and “Miss” or “Missus” in reference to a female. This is indiscriminately done in respect of witnesses, accused persons, parties in civil litigation, legal practitioners (Attorneys and Advocates), police officers and other court staff.
Using an individual’s preferred pronoun demonstrates apperception for the fact that people have diverse life perspectives and fosters a sense of respect and inclusivity in the functioning of courts. This is important not only during communication in court but also in writing judgments. The use of preferred pronouns is of significance to the person, in the same way as a name or title. An informed use of pronouns may save us embarrassment for offending a person due to stereotypical assumption based on names or looks. For example, an assumption that a masculine person would prefer the pronouns he/him/his, is not necessarily always the case. If you are unsure of a person’s pronoun, ask.
I am grateful to Adv. Letlhogonolo Mokgoroane, a practicing advocate in the Gauteng Province, South Africa, (who identifies as non-binary and prefers the pronouns they / them) who shared they experience with me. They appeared in the Johannesburg High Court during the COVID pandemic, when limited persons were allowed to enter the court building at a time. The Judge presiding over their case issued a directive that matters represented by female legal practitioners would be called first and thereafter male practitioners. Adv. Mokgoroane waited until the end of the roll, without calling their matter and upon enquiry by the Judge, they explained that they are gender non-conforming, and they were not catered for when the court directive was issued. The Judge realized the concern raised by Adv. Mokgoroane and he then intimated to be more inclusive of the unique views of LGBTQIA+ persons in his court, forthwith. The directive was subsequently changed in the Judge’s court, to the appearance of persons identifying as female and gender non-binary first and thereafter those identifying as male.
What are the pronouns used by LGBTQIA+ persons?
According to the Oxford Dictionary pronoun is - a word that can function as a noun phrase used by itself and that refers either to the participants in the discourse (e.g. I, you) or to someone or something mentioned elsewhere in the discourse (e.g. she, it, this). A third-person pronoun by which an individual wishes to be referred to in order to indicate their gender identity”. An example would be, “he then publicly announced in September that he is changing his pronoun to they/them.
On further research, the LGBTQIA+ Resource Center at the University of California[4], gives a simple but perfect explanation of what pronouns are, which is as follow: - “Pronouns are linguistic tools that we use to refer to people (i.e. they/them/theirs, she/her/hers, he/him/his)”.
Pronouns can further be categorized into gender binary and gender non-binary. The explanation given by Wikipedia is that gender binary (also known as gender binarism) is the gender classification into two distinct forms of masculine and feminine, whether by social system, cultural belief, or both simultaneously. In simple terms, gender binary persons would identify either as male or female. Gender non-binary and gender queer are umbrella terms that are not solely male and female (identify outside the gender binary). In simple terms this means gender non-binary persons does not identify as male or female and their pronouns would be they/them/ theirs.
MX pronounced (/mɪks, məks/) is an English neologistic honorific that does not indicate gender. Created as an alternative to gendered honorifics (such as Mr. and Ms.) in the late 1970s, it is the most common gender-neutral title among non-binary people and people who do not wish to imply a gender in their titles.
How do we use these pronouns?
To simplify the use of pronouns, the following examples can be found on www.pronouns.org-
She/Her: “She is the author and wrote the affidavit herself. That version is hers. I accept both her and her version.”
He/Him: “He is the author and wrote the affidavit himself. That version is his. I accept both him and his version.”
They/Them: “They are the author and wrote the affidavit themselves. That version are theirs. I accept both them and their version”. Please note that although “they” pronouns are singular and refer to an individual, the verbs are conjugated the same as with the plural “they” (e.g. “they are”). Also note that in this singular pronoun set many use “themself” rather than “themselves”, even though both are typically acceptable.
No Pronouns: In the event that a person has no pronouns you use the person’s name. “Chrisholm is the author and wrote that affidavit. That version is Chrisholm’s. I accept both Chrisholm’s and Chrisholm’s ideas.” You can use alternative language such as “Chrisholm wrote that affidavit unassisted” or “Chrisholm was the sole author of that affidavit”. Some might simply say “Chrisholm wrote the book Chrisholm’s self”
What do you do when the incorrect pronoun is used?
At first it can be overwhelming whilst trying our best when using and or addressing people with their correct pronouns and mistakes are bound to happen, since old habits die hard. If a mistake is made, the best thing to do is to apologise and to correct the mistake politely.
In conclusion, I implore upon Judicial Officers to be mindful as to inform themselves regarding persons preferred pronouns, in striving towards a more inclusive justice system.
Magistrate Chrisholm Davin Noble (He/Him)
Roodepoort Magistrates’ Court
Johannesburg
South Africa
[1] https://en.wikipedia.org/wiki/LGBT_pride
[2] Act 108 of 1996
[3] See eg. Satchwell v President of the Republic of South Africa (CCT45/01) [2002] ZACC 18 also National Coalition for Gay and Lesbian Equality and another v Minister of justice and others (CCT11/98) [1998] ZACC 15- In contrast to, the Ugandan Constitutional Court that on 3 April 2024, upheld the discriminatory provisions of the 2023 Anti-Homosexuality Act.
[4] http://lgbtqia.ucdavis.edu/educated/pronouns-inclusive-language