The Supreme Court of Canada went viral for what it didn’t say about ‘a woman’

Open this photo in gallery:

The outrage spread quickly. Why would the Supreme Court of Canada rule that the word “woman” is confusing – and that the phrase “person with a vagina” should be used instead?

It wouldn’t, of course. It didn’t. Still the outrage spread.

The idea that the Supreme Court would issue a decision that advocates replacing the word “woman” was widely ridiculed. It is ridiculous – so ridiculous you’d think the outraged people would check to see if it happened.

Yet somehow this false notion led to a unanimously passed motion of condemnation in Quebec’s National Assembly, put forward last week by Martine Biron, the Minister Responsible for the Status of Women. Federal Conservative Deputy Leader Melissa Lantsman posted a rebuttal on X insisting there is nothing confusing about the word “woman.”

The idea that the Supreme Court found the word “woman” confusing and better replaced by “person with a vagina” came from a piece by National Post columnist Tristin Hopper, based on a misreading of paragraph 109 of the Supreme Court decision. It should be obviously incorrect to those who read the other 248 paragraphs – which incidentally used the word “woman” over and over again.

People make mistakes, of course, but this one took off. Journal de Montréal columnist Richard Martineau declared it an example of wokeism everywhere. Former Parti Québécois leader Jean-François Lisée posted that it was another reason for Quebec independence. The British newspaper, The Telegraph, quoted former Arkansas governor Mike Huckabee’s criticism.

The ArriveCan of worms: public-service problems spill out

It was emblematic of how viral public debate works in 2024. It didn’t matter that the decision was on the Supreme Court’s website for all to read.

The reference to the phrase “a woman” being confusing wasn’t about the word “woman” being confusing. It was a reference to the fact that a statement about what “a woman” knows could be misconstrued to be a generalization about what every woman knows.

The decision, penned by Justice Sheilah Martin, was about assumptions and generalizations made by judges in sexual-assault trials.

There is a body of law that is supposed to prevent judges from applying gendered myths and stereotypes that undermine the credibility of women complainants. Some appeals courts have broadened that to a rule that trial judges can’t make “ungrounded assumptions.” In this decision, the Supreme Court rejected that rule.

In one of two cases being reviewed by the Supreme Court, the accused had denied he had vaginally penetrated a woman. But the trial judge found the complainant’s testimony credible, believing it “extremely unlikely that a woman would be mistaken about that feeling.” The appeals court overturned the conviction, finding the judge’s statement was an ungrounded assumption.

In the Supreme Court decision, Justice Martin wrote that, while the trial judge’s use of the phrase “a woman” might make it appear the judge was making a generalization, the judge was weighing the credibility of witnesses and had to be able to be allowed to conclude that “a person with a vagina” was probably not wrong about penetration.

“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,” Justice Martin wrote. “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 …”

Justice Martin herself might have written that more clearly. And anyone can say they didn’t like her choice of phrasing. But the hoopla – online, in Quebec’s National Assembly and in outlets around the world – wasn’t about that. It was about something the court didn’t say. There was a rush to dunk. There isn’t a rush to correct the record. Or admit mistakes.

The National Assembly motion introduced by Ms. Biron fumed about “terms and concepts that contribute to rendering women invisible” and urged the conservation of the word “woman.”

But when pressed this week in a Radio-Canada interview about whether she got the whole thing wrong, the minister claimed she hadn’t denounced the decision – which she now called “excellent” – but only the choice of the phrase “person with a vagina.”