8 NOVEMBER 2023
This statement follows on from our letter dated 5 November 2023 to the South Australian Courts Administration Authority.
This statement follows on from our letter dated 5 November 2023 to the South Australian Courts Administration Authority, to which we received no reply.
Women’s Rights Network Australia (WRNA) is a non-partisan network of Australian women who believe in biological reality and work to protect women’s sex-based rights. We believe that facts and evidence matter in law, policy and guidance documents.
The South Australian Practice Note on ‘pronunciation of names and gender pronouns’, issued by the Chief Justice of South Australia on 1 November 2023, articulates two objectives: first, ‘respect’ and second, to contribute to ‘ensuring public confidence in the proper administration of justice’. WRNA is of the view that the use of preferred gender pronouns in court proceedings will achieve neither of these objectives.
Respect for whom?
WRNA considers the court’s Practice Note to be disrespectful to female victim-survivors of male violence, people from non-English speaking backgrounds, and to females generally.
Ninety-eight to ninety-nine per cent of sexual offences are committed by males against females or children. Using female pronouns throughout court proceedings and in court documents for male alleged rapists/violent offenders who say they identify as women, obscures the reality of male violence against females. It also disrespects female victims’ experiences, women who have been subjected to the brutalising force of superior male strength and/or raped with male genitalia.
Even if a female witness is not compelled by the court to refer to a male defendant with female pronouns (referencing here Chief Justice Kourakis’ public response to JK Rowling’s social media comments on the Practice Note), presumably she will have to sit through days or weeks of others in court referring to him as a woman. This adds insult to injury and is highly likely to be re-traumatising for that woman. Courts should surely be doing all they can to avoid re-traumatising female victims of male violence as they navigate an already challenging criminal justice system.
Australia is a multicultural country, with 27.6 per cent of Australians born overseas. The use of preferred gender pronouns, with the obfuscation of facts and complexities that this involves (see below), is likely to make court proceedings and court documents even less accessible to people from non-English speaking backgrounds.
It is possible that some domestic violence perpetrators may see an opportunity in the use of preferred gender pronouns in court to further terrorise, control and abuse their victims, or alternatively, to complicate court proceedings. It is naive to believe that this would never happen. We query how the courts will identify and deal with those who seek to exploit this Practice Direction (and similar directions in other Australian jurisdictions) for such purposes.
Public confidence in the courts depends in large part on the courts maintaining a strictly neutral, evidence-based and non-ideological approach
Far from ‘ensuring public confidence in the proper administration of justice’, WRNA believes that the use of preferred gender pronouns in all court proceedings and judgments will achieve the opposite.
The use of preferred gender pronouns in court proceedings and elsewhere in public life is not simply a courtesy; it is political and demonstrates adherence to an ideology - gender identity ideology - that is founded in queer theory, highly controversial and not evidence-based. The courts should not be taking an ideological position on anything, as this will seriously erode public trust in their neutrality and corrupt their vital role as arbiters of truth and justice.
Using preferred gender pronouns in court proceedings obscures and distorts reality. Legal proceedings, court judgments and sentencing remarks must remain grounded in facts and reality. Referring to a convicted male rapist as a woman hides the reality of male sexual violence against females, at a time when such violence is at an all time high. It is also deeply offensive to females and in particular to victim-survivors of male sexual violence and other forms of violence.
There are more than 50 pronouns in use as alternatives to ‘his’, ‘her’ or ‘their’, for example ‘ve’, ‘xe’, ‘ze’, ‘cos’, ‘ens’, ‘zir’ and ‘ver’. If legal practitioners and judges are expected to use a party’s preferred gender pronouns in court documents, this may reduce the accessibility of their language. For example, we could end up with the following in a judge’s sentencing remarks on a convicted male rapist: ‘Xe used xyrs hands to strangle Ms T, who attempted to push xem off.’ Such language is confusing and far from inclusive and accessible. Further, the mental gymnastics required of legal practitioners and judges will be time consuming and may distract from the important legal issues at hand.
Preferred gender pronouns are the thin end of the wedge, the logical conclusion of which is violent male offenders in female prison estates. This is already happening in Australia, for example there is a trans identified male rapist housed in the Dame Phyllis Frost Centre for Women in Victoria.
Referring to male offenders as females in court documents and records is likely to distort crime statistics for fatal, violent and sexual offences. Statistics tell us that females rarely commit such offences. Even a handful of additional rapes attributed to females will have a distorting effect. It will also affect media reporting on these offences, thereby further obscuring the reality of male violence against females.
WRNA urges Australian judicial officers, court staff and legal practitioners to prioritise reality and facts over ideology. The needs of the 51 per cent of the population who are female should not be subjugated to the feelings of a small minority of men who identify as women.
Women’s Rights Network Australia 8 November 2023