“Woman” v. “Person with a vagina”

There is a bizarre scandal out of the Supreme Court of Canada, related to the language used in the sexual assault case R. v. Kruk, 2024 SCC 7. Like, “condemned by l’Assemblée nationale and various (male) commentators for contributing to the invisibilization of women” levels of bizarre.

The relevant paragraph is from Justice Martin, plus Chief Justice Wagner and Justices Côté, Kasirer, Jamal and O’Bonsawin, at 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.

I will admit up front that I haven’t managed to read the entire case and its history because I exceeded my limit on reading sexual assault cases a while ago. The law of sexual assault is dense with (1) stereotypes and generalizations and “how could he have known?” precedents and (2) complicated legal provisions and tests intended to combat (1). It seems to me that all of this combines to obscure the actual lived experience of victims in favour of abstract debates about things like judicial notice of the sensory capabilities of hypothetical or statistical vaginas. It’s depressing.

But I will talk about language.

The first sentence of para. 109 seems inarguable to me. We’re specifically talking about the feeling of a penis penetrating a vagina, so “a person with a vagina” is fine / correct. It is legally irrelevant whether that person is a woman or not. It does not make them any more or less credible about whether they felt a penis penetrate their vagina.

The first part of the second sentence is odd if the trial judge wasn’t misgendering the complainant. The coverage suggests there’s no reason to believe the trial judge erred on that point, so it’s unclear why the Supreme Court would chastise for it. It’s a big deal when the highest court in the land puts into the public record that your word choice was unfortunate and engendered confusion!¹ Failing to use gender-neutral language where there’s no reason to believe the relevant person prefers it does not seem egregious enough to merit a judicial knuckle-rapping. The point could still have been made without it that “person with a vagina” is available, inclusive language.

But I don’t believe the Supreme Court with this half-sentence is just free-range insisting lower courts start avoiding the word “woman” in favour of the phrase “person with a vagina.” That is a bizarre and paranoid take. Hysterical, even.²

Sometimes “woman” will be the right choice. It is, for example, the right word when it’s the International Day of Women Judges and we’re celebrating the fact that the Supreme Court of Canada for the first time since its creation in 1875 has a majority of female justices. “Should it be rewritten to say that we honour judges with vaginas?” No. They were not appointed because of their vaginas. They were appointed because of their intelligence and their achievements, and this despite the sexism against women that continues to exist in the legal system and society generally. That’s worth celebrating.

It is inclusive to say “person with a vagina” when the vagina is relevant to the discussion. It is demeaning to look at a historic photo of five women who have achieved extraordinary professional success against significant odds and say “but let’s talk about what’s under their robes.”

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1. I assume “engendered” is deliberate wordplay here. There is no such wordplay in the French: “Bien que le choix du juge du procès d’utiliser les mots « une femme » puisse avoir été regrettable et causé de la confusion…”. ↩︎
2. For anyone who enjoys footnotes for wordplay, “hysteria” was “basically the medical explanation for ‘everything that men found mysterious or unmanageable in women’,” blamed specifically on the uterus. ↩︎