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Gender Identity in CF Personnel Appraisal

Recently, a colleague of mine brought to my attention an e-mail circulated by Conservative Party Leadership candidate Leslyn Lewis.  Ms Lewis is a lawyer with a PhD in Law and, like me, is a licensee of the Law Society of Ontario.

As a strong proponent of a collegial Bar, I believe whole-heartedly in the Rules of Professional Conduct that promote courtesy within our profession.  However, I disagree with some of the assertions raised by Ms Lewis in her campaign materials.  I have always endeavoured to use my Blog as a means of offering reasoned commentary on matters of public law and policy affecting the Canadian Forces and encouraging critical examination of those issues.  Ms Lewis’ comments represent just such an occasion.

The issue concerns the recent policy shift by the Canadian Forces to direct supervisors who complete Personnel Evaluation Reports (PER) to refrain from using gender-specific pronouns in the course of completing the PER.  This policy change was promulgated in CANFORGEN 045/20 – and more on that later.

First, here is the content of Ms Lewis’s campaign related e-mail (out of fairness, I have reproduced it in its entirety, and with the emphasis used in the original):

The safety of men and women in the military should be our primary goal – not political correctness.

Historically, women have faced barriers in certain occupations, including in the military. These barriers will be made far worse under the new Liberal directive that the Canadian Armed Forces are no longer allowed to write “he” or “she” in official reports.

The government recently made large investments in attracting women to the Armed Forces and even produced an 85 page report only to now outlaw the use of the words “she” or “her”.

How are they going to recruit women when they can’t even say “she” or “her”?

Just a few months ago the government settled with victims of sexual harassment and assault in the armed forces to the tune of $900 million.

How will the government be accountable for whether women are safer against sexual harassment if they can’t mention women in their official documents? 

On the most basic level: how is anyone even supposed to report an incident of abuse accurately? 

This isn’t practical. The government is erasing all the gains that women have made in the Canadian Armed Forces with this policy.

More importantly: it isn’t safe.

The government has no right to erase the identity of women and men in our armed forces who still want to be referred to as “she” or “he.”

We don’t need over-the-top political correctness in Canada.

We need a return to goodness and kindness.

That would be a truly inclusive country.

Do you agree with me that the government is going too far? You can let me know either way by taking my brief survey here.

Sincerely,

Leslyn

Ms Lewis appears to have relied, at least in part, on an article appearing in the Post Millennial, an online media source that could reasonably be described as favouring a conservative perspective.  Ms Lewis included in her e-mail a hyper-link to the Post Millennial article, published on 12 April 2020.  I have kept that hyper-link in the quote above for ease of reference.

I note tangentially that, while the hyper-link incorporates the words “new Liberal directive”, it is a link to the Post Millennial article and not the ‘directive’ in question.  Moreover, the ‘directive’ is not a ‘Liberal directive’, but rather, a CANFORGEN (Canadian Forces General Message) issued under the authority of the Chief of the Defence Staff (CDS).  I suggest that asserting that the CANFORGEN is a ‘Liberal directive’ is akin to suggesting that the CDS is acting as an extension of the Liberal party, rather than as a presumptively politically neutral member of the Canadian Forces, exercising duties, powers, and functions established by, and under the authority of, the National Defence Act.

The Post Millennial article cites a portion of CANFORGEN 045/20 relating to the drafting of PER and then states:

In practice, superiors, who are required to write personnel reports for those who serve under them, will not be allowed to use the pronouns of that person’s choosing if they identify as male or female and use sex-based pronouns. Instead, everyone will be referred to with the accepted gender neutral, plural pronouns of “they, their, them.”

It is not yet known how Canadian Armed Forces personnel will react to the deprivation of their sex-based identity in their personnel documents. It is currently not clear what the consequences may be for officials who do not follow the new protocol.

The article also included a hyper-link to CANFORGEN 045/20 and I encourage readers of this blog to review that CANFORGEN in the context of the present post.

I disagree with the characterization that has been offered by both Ms Lewis and the Post Millennial.  Indeed, based upon the passage cited by the authors of the Post Millennial article, the directive does not state that gender will be removed from personnel documents (and I suggest that the authors of the Post Millennial article seek to imply that this will be applied to all personnel records).

Based upon Ms Lewis’ reaction, she seems to conclude that the directive will be applied broadly across all reporting in the Canadian Forces, including Military Police and harassment investigations.  I believe that this may be an unreasonable conclusion to draw, if it is based (as it appears) solely upon CANFORGEN 045/20, which pertains solely to the Canadian Forces Personnel Appraisal System or CFPAS.

The Post Millennial article quotes sub-para 5F of CANFORGEN 045/20 so let’s look at the specific text:

ALSO BASED ON A RECENT CAF CULTURAL AND NORMATIVE SHIFT TO PROMOTE GENDER DIVERSITY AND ASSOCIATED INCLUSIVENESS, CFPAS WRITING POLICY AND GUIDE WILL ALSO REFLECT THIS NEW REALITY WHERE SEX, GENDER IDENTITY AND GENDER EXPRESSION ARE PROHIBITED GROUNDS OF DISCRIMINATION UNDER THE CANADIAN HUMAN RIGHTS ACT. FORTHWITH THE USE OF GENDER PRONOUNS SUCH AS QUOTE HE/HIS AND SHE/HER UNQUOTE ARE NOT TO BE USED WHEN DRAFTING PERS. MEMBERS WILL BE REFERRED TO BY RANK AND NAME OR BY USING GENDER-NEUTRAL PRONOUNS SUCH AS THEY/THEIR.

This direction is clearly limited to the completion of documents under the CFPAS – namely, Personnel Evaluation Reports (PER) and Periodic Development Reports (PDR).  It does not apply across all personnel related correspondence.  Nor could it be interpreted as restricting the use of gender specific terminology in documents such as Military Police Reports or harassment investigations.

While I was not involved in the creation or promulgation of this policy, I believe that I can draw some logical inferences from the specific passage and the entirety of the CANFORGEN.  The policy intent likely includes the objective of avoiding placing subordinates in awkward situations in what can be described as a coercive relationship.  After all, supervisors (i.e. persons of higher rank) in the CF arguably wield greater authority over subordinates than arises in a typical employment relationship.

A supervisor could ask a subordinate whether the subordinate has a preference regarding gender-based or gender-neutral nomenclature.  However, such an approach raises issues of both efficiency and coercion.

Under the Canadian Human Rights Act, it would be improper to refer to a subordinate by a gender-specific term that the subordinate does not accept as applying in the subordinate’s specific circumstances.  There may be some people who disagree with the current state of the law in that regard.  One of the profound benefits of our democracy is that people can disagree on what the law should be and can advocate for their preferences.  But another profound benefit of our democracy is that regardless of what our preferences might be concerning what the law should be, we are all bound by the law that exists.  As I have observed in this blog previously, the rule of law is a vital component of any democracy.

Supervisors could ask each subordinate for the subordinate’s preferred form of gender-related address, including the use of gender-neutral forms of address.  It’s not particularly efficient, but that is an option.  However, in the coercive environment of the CF, that can pose problems.  A CF member may not wish to appear to oppose convention by insisting on a particular form of address, particularly at an early stage in the member’s career as a recruit or officer cadet.  It’s all well and good to suggest that a member of the Canadian Forces should have the “intestinal fortitude” to stand up for his/her/their status, but I contend that this is not a particularly realistic suggestion in light of the power dynamic that exists within any military institution, particularly where lawful, but unconventional, views or positions may challenge established norms.

I suggest that this policy was introduced not only for administrative efficiency, but also to avoid placing CF personnel, who might otherwise feel vulnerable in a monolithic institution, in a difficult circumstance.

And contrary to the suggestion in both the Post Millennial article, and in Ms Lewis’ e-mail, this narrow policy change does not deprive CF members of their sex-based identity.  Frankly, the CF already uses non-gender terminology.  A Corporal is not a “Corporal (female)” or a “Corporal (male)” – a corporal is a corporal.  Using non-gender terms in a PER no more deprives a CF member of the member’s sexual identity than does calling the member a corporal.

This can be contrasted to the period, over 50 years ago, when a female member of the CF would typically have a “(W)” placed after her rank on nominal rolls and similar documents.  Ostensibly, this was done to signal gender for the purposed of assigning accommodations and related administration.  However, such distinctions could also be interpreted as indicating some sort of ‘different’ – and lesser – status.

As an aside, the use of rank, rather than gender-specific pronouns, may still pose a challenge in French.  Traditionally, in French – which assigns gender to nouns – the various ranks are masculine (e.g. le capitaine, le caporal).  Within what may be termed the ‘French Academy’, the neutral form of nouns is typically assigned masculine gender.  More recently a movement to ‘feminize’ rank (e.g. la caporale for a female corporal) has emerged.  In reaction to this, another movement has suggested epicene language (e.g. “le.a caporal.e”).  Some authors and civilian organizations have adopted the epicene approach, but those tend to be the exception to the rule.

I am not proposing a particular solution regarding how the French language in Canada should evolve – that is significantly beyond the scope of the present Blog article.  I raise this issue here to demonstrate that, while sub-paragraph 5F of CANFORGEN 045/20 presents a gender-neutral solution to drafting narratives in PER, it raises a separate issue regarding the use and evolution of the French language.  As the armed forces of a constitutionally bilingual nation, the CF must develop policies that address the issue in both English and French.

However, neither the Post Millennial nor Ms Lewis address issues arising in the French language.

Nor does a narrow policy relating to PER prohibit CF investigators – whether they are Military Police, unit disciplinary investigators, or harassment investigators – from identifying a complainant’s (or any other person’s) gender (including gender-neutral or gender-binary self-identification) where gender is relevant to the investigation.  There is nothing in CANFORGEN 045/20 that suggests that it applies beyond the CFPAS.

That doesn’t mean that I do not have any objections to CANFORGEN 045/20.  As I have indicated previously in this blog, here and here, using CANFORGEN as policy instruments is problematic.  CANFORGEN are intended to be used to make announcements to the CF.  While they can, and should, be used to announce changes to policies, the actual policy changes should be made in proper policy instruments.  And CANFORGEN are not published as notoriously (meaning: as broadly) as CF policies such as Defence Administrative Orders and Directive (DAOD).  Nor are they as easily accessed.

However, requiring CF supervisors to use gender-neutral language in PER and PDR does not deprive people of their sexual identity.  Nor does it make the CF less safe for women, people who identify as binary, lesbians, gay, trans, queer, questioning, 2-spirited, or any other people who have been marginalized in our society.  In fact, throughout my career, I encountered many people who, when faced with circumstances involving marginalized people would respond (some, perhaps, defensively) with words to the effect of: “I don’t see _________ (fill in the blank with: gender; sexual orientation; faith, creed or religion; ethnicity, race, or skin colour, etc.), I only see Army Green (or Air Force Blue, or Navy Blue)”.  (As an aside, for you sailors – say what you like, but your uniform is black folks, it’s black.)

This policy change – and it is a narrow policy change – is giving effect to that oft-repeated mantra.  PER and PDR will reflect relevant information – a person’s rank, name, position, functions, and performance.  It’s not depriving them of their sexual identity; it’s removing that issue from the equation.  It doesn’t bar the person from having or expressing a particular sexual identity.  Nor will it “outlaw” the use of gender-relevant terminology where it is appropriate or necessary.

Suggesting that a policy document says or does something that it clearly does not is irresponsible journalism on the part of Post Millennial and a disingenuous statement by a candidate for political office.

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