Isabelle joined the firm from the Criminal Trial Division of
the Supreme Court of Victoria and has experience in criminal law
and international human rights law. She is currently based at our
Melbourne office.
Isabelle has worked on murder and terrorism matters whilst an
Associate at the Supreme Court. Before this, she was in Thailand,
Cambodia, and Palestine working in international human rights law
for non-governmental organisations and the United Nations Office of
the High Commissioner for Human Rights.
A large part of my work focusses on representing trans and gender diverse (TGD) people in the criminal legal system and prisons. The additional hurdles that a TGD person has to face while navigating this stressful experience makes proceedings even more complicated than they need to be. I have noticed though, that the courts are ready to help.
From my experience, judges, judicial registrars and magistrates are ready to hear from lawyers what our TGD clients need in order to feel seen and respected in court. As lawyers, we need to be sending the emails and making the submissions about how our clients should be addressed and shown respect in court. There are simple ways to do this that make a significant difference, including using proper pronouns and avoiding deadnaming in court documents.
They Them He Him She Her Shi Hir She Them He They
Firstly, pronouns.
Correct gender pronouns should be used in the police summary, the summary of prosecution opening, in particulars and, of course, in open court. As defence lawyers, we need to be checking summaries and openings to make sure they are correct. If they are not, we need to ask for them to be changed before they are read in court.
Regarding how the court addresses our clients, it is important to note the recent County Court Practice Note issued on 15 March 2024, Pronunciation of Names and Forms of Address.
Clause 3.4 encourages practitioners to provide guidance as to forms of address and pronouns of anyone associated with their client's case. The example provided is:
As someone who has had to explain to the court and barristers on numerous occasions how to pronounce "Mx" for addressing trans and gender diverse clients in court, I am delighted to see it adopted.
Getting Your Client's Name Right
Another issue that I have encountered is when the police lay charges under a client's deadname. A deadname is the name a trans person was given at birth, but that they do not identify with. As it can be really difficult to legally change a name sometimes, a person's deadname may well still be their legal name and on their ID. Regardless, it is extremely disrespectful to address a trans person by their deadname, or even ask them what it is.
When police put a deadname on a charge sheet, that name gets entered into the court system. Every time that person's matter is called for hearing, they are deadnamed and outed as a trans person in a public space. Experiencing the anxieties and stress of a criminal proceeding whilst being called by a name that evokes trauma and marginalisation is cruel.
The court process is meant to be fair and impartial. An accused has a right to be seen and heard. Being called by a deadname in court, or when contacted by the court, or when receiving correspondence from a lawyer, erases an accused person from the proceedings and denies who they are.
Precedent
I addressed this situation recently in the Magistrates' Court. I announced my appearance, and presented myself as acting for [...]. I referred to my client by their proper name, not the name called out in court. Into the confused silence, I explained that I would be making an application to change my client's name on the court register. I explained in brief terms why it was a violation of my client's privacy to be outed at every court hearing; and that being referred to by the wrong name was undermining and disrespectful.
The prosecution offered a mild objection, indicating that there was no legal documentation to support my application and proposed an "aka " to be marked on the file instead, while keeping it listed under her deadname.
The Court made it very clear it did not accept the prosecution's argument. The Magistrate listened to my application and asked me for the correct spelling of my client's name.
The matter was stood down for other reasons and the court admin staff went to some lengths to change the court file in the interim. The client was called by her proper name thereafter.
It is important for practitioners to know that the courts are amenable to these kinds of submissions relevant to trans and gender diverse people in court.
Moving Forwards
There will no doubt be outlier judicial officers who refuse to accept gender diversity as real. Likewise, there will continue to be lawyers who fail to show respect for a client's gender identity. But more and more, I find that these old-fashioned champions of the rigid binary are losing standing. The more common attitude is one of genuine interest and good will.
As a culture, our understanding of gender diversity is developing. It is very encouraging to see the courts taking these matters seriously, even when it is challenging to break away from deeply ingrained binaries. As lawyers, the more vocal we are about what matters to our TGD clients, the less strange gender diversity will seem in an otherwise cis-gendered world.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
