The task of the common law system is not the pursuit of truth, but the arbitration of the adversarial disputation of the truth. In a post-modernist world where truth is personal and experienced, the common law court system is the last stronghold of dispassionate inquiry into the truth. The court’s role in that system is to hold fairly the balance between the contending parties without itself taking part in their disputations.

Because language and the law are symbiotic, controlling legal language is the prize of gender ideologues, enthralled in the eradication of biological sex from law. Control the language; control the narrative.

The Australian judicial system has recently found itself captured by the ideological aversion to sex-based language. This is no doubt due to the relentless lobbying efforts of said gender ideologues who achieve their aims by decoupling sex from reality in policy and legislation by stealth.

This week, South Australia announced it would be joining Queensland, New South Wales, Victoria, and the Federal Circuit and Family Court of Australia in endorsing ‘preferred pronouns’ in the court as a ‘matter of respect’. Bench Books (handbooks for judges) and Practice Notes (guidelines governing court conduct and processes) have been quietly altered to insert ‘preferred pronouns’ as normal court etiquette.

JK Rowling waded into the fray saying on X (formerly Twitter):

‘Asking a woman to refer to her male rapist or violent assaulter as ‘she’ in court is a form of state-sanctioned abuse. Female victims of male violence are further traumatised by being forced to speak a lie … Personally, I wouldn’t be compelled, I’d take contempt of court. It’s time for mass non-compliance with this bullshit.’

Her comments were rebuked by the Chief Justice of the South Australian Supreme Court as anxious social commentary.

It is not the place of lawyers to criticise the judiciary lest the profession and the administration of justice be brought into disrepute. And ‘…ay, there’s the rub’.

Certain norms are employed in court and legal practitioners are duty-bound to uphold them. Professional obligations not to mislead the court, to act with honesty and candour, and to be frank and fearless have percolated by precedent over millennia to maintain public confidence in the independence of the system.

Civility and professional courtesy of themselves are professional obligations. In many circumstances, a breach of these obligations will coincide with the breach of concurrent ethical obligations. The requirement of civility and professional courtesy is a requirement to be honest and courteous in all dealings in the course of legal practice. It requires practitioners not to engage in conduct, which is likely to be prejudicial to, or diminish the public confidence in the administration of justice and bring the profession into disrepute.

However, the content of civility in the context of legal practice is affected by the purpose which it serves. There can be no inherent inconsistency between the requirement for civility and the practitioner’s obligation to advance, within other ethical constraints, frankly and fearlessly, their client’s interests in the contest for the adjudication of truth.

Abiding these principles, the common law system therefore cannot be seen to coalesce to a movement that compels people to ignore reality in the name of courtesy or civility. The system only survives by reason of the fact that its officers can maintain the independence and fearlessness necessary for the robust testing and adjudication of truth.

Viewed in this light, the claim that ‘preferred pronouns’ are an ‘important component of ensuring public confidence in the proper administration of justice’ is palpably erroneous.

Compelling officers of the court to participate in the rituals of an ideology predicated on subjective truth, viz. that a person is the opposite sex if they claim to be, is antithetical to the fundamental objectives of our common law judicial system. The judiciary is a quintessential arm in our democracy and must maintain the agnosticism essential to the enduring public confidence in its ability to arbitrate truth.

It is apparent to anyone paying even the most fleeting attention that the word woman is under assault. The legal meaning ascribed to woman is fast cementing the right of men to identify not only into a defined sex class, but to impugn women who have the audacity to seek to protect themselves by taking preventative measures against male-patterned violence in the form of designated female spaces. That this is a reality emerging from a society, that simultaneously mourns the deaths of 6 women murdered by men in a mere 11 days, is utterly unfathomable.

Earlier this year, the reasons for the judgment delivered by the NSW District Court attracted international attention when the decision referred to ‘her penis’ in relation to a man who committed sexual offences against a child in a public male toilet.

In 2022, a male sex offender was charged with 72 counts of incest, assault, choking, sexual assault and acts of indecency against his younger minor sisters. In the hearing for the bail application, which was granted, the Local Court remarked, ‘[t]o [her Honour’s] grand astonishment I am told she (sic) would be held in the male section of the AMC and that would clearly not be in the interests of a person who identifies as a woman.’ The accused was thereby released to civil society free to enter any female-designated space he chose.

In the UK in 2018, the sentence against a 26-year-old male who assaulted by battery a woman in her 60s was reduced because the victim did not use her male attacker’s preferred female pronouns.

These are but three cases. There are more. And we can be certain there will be more still.

As the ephemeral concept of ‘trans and gender diverse’ is further concretised into law as a protected characteristic (despite the absence of a settled and objective definition beyond the performance of outdated stereotypes), it seems almost inevitable that participants in the legal process will be compelled by dint of their professional obligations to employ ‘preferred pronouns’. And with this, the agnosticism, fearlessness, and independence of the profession charged with the duty to protect the robust arbitration of truth will be enfeebled.

In compelling truth in the name of respect, the role of the court process as arbiter of the truth is compromised. The common law legal system must be inoculated against to the whims of populism masquerading as kindness and respect. Telling lies and compelling others to do the same is not respectful, and it is not kind. It is conduct unbecoming of a profession charged with custody of the robust and fearless contest for truth.

The Federal Court of Australia will soon hear a legal challenge, ironically argued entirely by a bar table populated exclusively by female practitioners, to determine the right of a self-evidently adult human male, emboldened by a female sex marker on his Queensland-issued birth certificate, to enter female designated spaces. In Tickle v Giggle, Sall Grover of Giggle will defend the right of all people to assert honestly, without fear or favour, the existential reality of sex when they see it. In defending this right, Sall is not being disrespectful.

Katherine Deves is on the legal team for the upcoming case of Tickle v Giggle and a founding member of CommonSenseDefence. Visit gigglecrowdfund.com to lend your support to the defence of truth.