The Supreme Court, “person with a vagina” and knee-jerk outrage culture

Did the Supreme Court of Canada ban the use of the word “woman” because it’s gotten too woke?

Reading the coverage of a recent decision, you might be justified in thinking that’s the case. It’s not, of course. A simple reading of the decision would confirm that by any reasonable analysis. But even when presented with the facts, the people who cranked the outrage machine insist they’re right.

Which is a bit concerning because they’re all people who work or have worked as journalists for mainstream media.

The decision in question is called R. v. Kruk, and dated March 8 (coincidentally, International Women’s Day). But the outrage circus started March 13 when the National Post published its daily opinion newsletter from Tristin Hopper, titled “Supreme Court decision opts for ‘person with a vagina’ over ‘woman'”. It starts as follows:

The Supreme Court of Canada ruled in a recent sexual assault case that it was “problematic” for a lower court judge to refer to the alleged victim as a “woman,” implying that the more appropriate term should have been “person with a vagina.”

In a decision published Friday, Justice Sheilah Martin wrote that a trial judge’s use of the word “a woman” may “have been unfortunate and engendered confusion.”

Martin does not specify why the word “woman” is confusing, but the next passage in her decision refers to the complainant as a “person with a vagina.” Notably, not one person in the entire case is identified as transgender, and the complainant is referred to throughout as a “she.”

Right-wing and clickbait social media accounts and websites and even news media pounced on Hopper’s interpretation of the decision, as did Journal de Montréal columnist Richard Martineau, who wrote in a column published the next day that “Il n’y a plus de femmes au Canada!” (There’s no more women in Canada!)

Martineau repeats the two key points of Hopper’s analysis, that the Supreme Court ruled a lower court’s use of the word “woman” was problematic, and that the Supreme Court says judgments should instead say “person with a vagina.”

Martineau’s column, in turn, prompted Martine Biron, Quebec’s minister responsible for the status of women, to present an emergency motion in the National Assembly condemning the Supreme Court’s words. Co-signed by Parti Québécois Leader Paul St-Pierre Plamondon, Liberal MNA André Morin and independent (formerly Liberal) MNA Marie-Claude Nichols, it passed unanimously.

There’s just one problem. That stuff about the Supreme Court finding a problem with the word “woman”, and saying courts should use “person with a vagina” instead? It’s not true.

I’ll republish the offending paragraph here in its entirety:

[109] 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. The Court of Appeal erred in finding otherwise.

For those who haven’t already read the context, this is a case about sexual assault. Specifically, it’s about whether a trial judge erred by drawing conclusions based on “ungrounded common sense assumptions” rather than the evidence presented — and specifically whether the appeal court should be allowed to overturn a conviction if the trial judge relied on such assumptions. The Supreme Court restored the sexual assault conviction that the appeal court had overturned.

So why did the Supreme Court say that the judge using the word “woman” was “unfortunate and engendered confusion”?

Well, it didn’t. It said the use of the words “a woman” may have been unfortunate and engendered confusion. From the context of the decision, it’s clear the issue isn’t with the word “woman”, the issue is with the word “a”.

Let me explain.

“A woman”

A few paragraphs before this, the Supreme Court judge lays out the issue, quoting a key passage from the trial judgment that led to the appeal: “She said she felt his 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.”

The appeal court decision hinged in part on that last sentence, arguing that the trial judge was making generalizations about women based on personal feelings not supported by evidence.

But the Supreme Court decision found that it wasn’t a judicial error: “Viewed as a whole and in context, the trial judge did not reject the defence theory because of an assumption that no woman would be mistaken, but rather because he accepted the complainant’s testimony that she was not mistaken.” (Emphasis from the decision.)

In other words, the Supreme Court says that the decision read in context makes it clear that the judge wasn’t trying to make a generalization about all women, but talking about the specific one in this case. It says the use of the words “a woman” is problematic because it might be read to imply this is a generalization.

Or in the court’s words: “In context, it is clear that the impugned statement, while perhaps unfortunately worded, was in fact not a generalization at all, but a specific articulation of the judge’s response to a theory advocated by the defence.”

Nothing in the Supreme Court’s decision either rules that the word “woman” is inappropriate or that its use should be replaced.

“Person with a vagina”

So what about the “person with a vagina” thing? Isn’t that woke-speak?

Maybe. Unless the judge wants to comment about the decision (they don’t usually do that), we won’t know exactly why the choice of words, but the most reasonable explanation is that the paragraph in question is talking about vaginas. This isn’t about women in the workplace or some broad feminist issue. It’s about the feeling of a vagina. And it makes sense for the court to use precise language in this key paragraph. Otherwise we might be left with a loophole where rights apply to women with vaginas but not to trans men with vaginas, and I don’t see a credible argument for why you’d want that loophole. (We’ll get to the transphobic implications of this issue below.)

The phrase “person with a vagina” appears nowhere else in the court’s decision. The words “woman” and “women” appear dozens of times (the counts vary depending on whether you include the names of appellants and use of the word in titles of citations, but it’s somewhere around 60 total). And even the paragraph where “person with a vagina” appears uses exclusively female pronouns when referring to that person.

If the Supreme Court found that “person with a vagina” should be used over “woman” then that’s not what we’d expect. And even if it did prefer the former wording in its judgment, which clearly it didn’t, that wouldn’t mean we can no longer use the word “woman”. This decision is not about language and no ruling was made with regard to language.

Doubling down

Now, I work in the media, and I know people can get things wrong. It happens a lot, you see something you think is really scandalous, only to realize later you misunderstood it and it’s a lot less interesting than you thought it was.

But despite several journalists, experts and social media activists laying out the case that these people were mistaken in their interpretation of the judgment, they’re all doubling down and insisting they were right all along.

For Hopper, who started this whole thing, the explanations that his analysis was incorrect don’t hold any weight. The judgment, he argues, was unclear, and so he can simply assume his assumption is true unless it is proven untrue.

As of this writing, his original story remains uncorrected and is still being spread on social media as a reliable source that what he described actually happened.

Later, Hopper bragged in another newsletter about Biron’s motion, with nothing to suggest her interpretation might have been incorrect.

Martineau, meanwhile, insisted that the simple use of the term “person with a vagina” once was once too many and the Supreme Court had been infected with “la novlangue woke” for a case that didn’t even involve trans people. He made a bizarre analogy to not being able to draw people with two arms and two legs because some people don’t have two arms or two legs. Which sounds like a common-sense argument until you think about it for one second and realize it would actually be a very bad idea for a law or Supreme Court judgment to be written in a way that it doesn’t apply to people who don’t have two arms and two legs.

“Allons-nous changer toute notre façon de parler — et notre façon de dépeindre et de concevoir notre monde — pour 0,001% de la population?” he asks, making up a statistic. Inclusive and accurate language, in his opinion, should only be used — or allowed to be used by the Supreme Court — when it doesn’t make him have to reconsider his worldview.

As for Biron, in an interview with Radio-Canada’s Patrick Masbourian, she said she stood by the motion even though she supports the court’s decision (which she insists she read), because she believes the term “person with a vagina” is “loaded” and controversial. She said the motion does not denounce the decision but simply the choice of wording.

For the record, this was the motion presented March 14, as recorded in that day’s hansard:

Que l’Assemblée nationale dénonce le choix des mots utilisés dans un récent jugement de la Cour suprême pour désigner les femmes;

Qu’elle réitère l’importance de conserver le mot femme;

Qu’elle se dissocie de l’utilisation de termes ou de concepts contribuant à invisibiliser les femmes;

Qu’elle rappelle les gains importants réalisés dans les dernières décennies afin de faire avancer les droits des femmes et la nécessité de protéger ces droits acquis.

Whether the term was used to “designate women” is very debatable for reasons given above. I read the judgment as using the term to designate people with vaginas, but I guess I’m reading it differently.

Denounce first, think later

Since the motion passed, some other members who voted for it have expressed second thoughts, particularly those you might think would be trans allies. La Presse’s Philippe Mercure talked to some politicians about these kinds of last-minute motions and discovers unsurprisingly that they tend to come up with little notice, forcing other parties into a bind: vote for the motion, or risk being seen as against a universal value like women not being made invisible.

Because these last-minute motions need unanimous consent to be voted on right away, any MNA has a de facto veto over it, which means any MNA objecting to its consideration without notice would instantly be under the spotlight.

That seems like a pretty crazy way to run a legislature in practice. And this isn’t the first time they’ve had second thoughts. In fact, only days after this motion, following the death of former MNA Yves Michaud, the Parti Québécois renewed its demands that the assembly apologize for a last-minute motion that denounced Michaud without giving him a chance to defend himself first.

Even worse, this motion denounced the Supreme Court of Canada. You’d think a serious provincial legislature would take a minute or two, maybe even talk to an expert or two, before passing an official motion criticizing the highest court in the country. It’s not like there was some ticking clock deadline. But the need to grandstand politically took precedence over the responsibility to get all the facts before speaking with authority.

(A former politician and the Supreme Court aren’t the only ones to have been targeted this way. Several similar motions have been passed in the past denouncing the media and others who have said things the government could find a way to spin as anti-Quebec.)

Perhaps it’s time for at least one politician to start refusing to consider supposed emergency motions to complain about things without fear they will be painted as being against the values those motions purport to support.

Why do we fear words?

Inherent in criticism of the use of this phrase “person with a vagina” is that it’s somehow anti-women. While some experts have explained that this criticism of the decision is misplaced because the decision isn’t about how to call women, few people have tackled head-on how we should talk about vaginas in a world where trans people exist.

One option would be to simply deny that people with vaginas could be men. To erase trans and non-binary people like those who scream “there are only two genders.” I’m not going to discuss here whether that’s a morally or scientifically sound position to take, but it would at least be internally consistent. If there are no non-women with vaginas, then why not use the term “woman”?

But while I don’t doubt some on the far right who have used this issue to fuel their outrage generators do indeed deny the existence of transgender people, it’s not all of them. Martineau implied that he might feel differently if the court’s decision was about a trans person, and that trans people represent a small minority of the population (implying they exist). In December, Biron announced government funding to fight transphobia. If a trans man (i.e. a person born female who identified as a man) were raped, I think these people would say that person deserves justice and wouldn’t insist on calling that person a woman.

So why the issue with the wording here? Why is it so triggering that, in a paragraph of a legal judgment talking about vaginas, the term “person with a vagina” is used, whether it’s to be scientifically specific or just more inclusive?

As a copy editor, I know making language more accurate can make it complicated, and that can be annoying, especially when you’re accounting for a remote possibility. A story about a car crash will often say “accident” even though technically we don’t know if it was accidental. Almost always it is, but there’s a chance it was intentionally caused. So for the sake of accuracy we have to avoid the term “accident” until we know for sure. The fact that intentional crashes only happen 0.001% of the time, to use Martineau’s statistics-inventing method, doesn’t mean you can just afford to be wrong.

But talking about car crashes isn’t as triggering to culture warriors as talking about trans rights. So no one’s going to accuse a newspaper of erasing accidents when they use the term “crash.”

Further reading

If you’re interested in more serious discussion of this Supreme Court decision (including some criticism of its actual substance), you can read this story in Canadian Lawyer, published before the brouhaha.

7 thoughts on “The Supreme Court, “person with a vagina” and knee-jerk outrage culture

  1. Bill Lee

    So “short” a commentary on a Commentary.
    The right-wing “buys ink by the barrel”

    Thankfully Steve Faguy clears up the Fog and Brouillard.

    Trebles alaround

  2. Patricia Crowe

    Thank you for this. I refuse to give any clicks to Mr. Hopper and I really could not make sense of the story because I couldn’t find any sources I consider reliable. You, as always, are reliable. :)

  3. TV guy

    Tristin Hopper was okay until he moved back to Victoria to set up his own media company and failed. They is nothing wrong with failure as long as you use it as an opportunity for growth, but Mr. Hopper has instead used to to fuel his anger at everything except the provincial and municipal policies that have made him unable to afford a mortgage.

  4. Anonymous

    How is “a person with a vagina” any more clear, any less a generalization, than “a woman”? If the “a” in the second instance was an issue, surely the issue remains with the “a” in the first.
    Then, the issue sure seems like the supreme Court judge has an issue with using “woman” and her preference is “person with a vagina”.
    Lastly, reducing descriptions of people down to their sexual organs and / bodily functions is most definitely crass and “woke” appeasement of the most militant of trans activists.

    1. Fagstein Post author

      How is “a person with a vagina” any more clear, any less a generalization, than “a woman”?

      It’s clearer, but it’s not less of a generalization. The Supreme Court’s ruling was talking in the general sense, as it is meant to apply generally.

      Lastly, reducing descriptions of people down to their sexual organs and / bodily functions is most definitely crass and “woke” appeasement of the most militant of trans activists.

      Except that’s not what the court is doing, anymore than referring to “a homeowner” in a real estate case is “reducing” someone to their real estate holdings.


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