The centuries-old tradition of gowning in court is overdue for a modernization. The CBA Women Lawyers Forum is working with the bench and bar liaison committees and branches to write to various courts across the country, encouraging them to adopt more inclusive gowning policies.
Courts are being asked to accommodate lawyers who need to modify their attire due to pregnancy or other personal circumstances, such as medical conditions or disabilities. To respect the privacy of counsel wearing modified attire, WLF also recommends that the policy explicitly state that counsel will not need to discuss their attire or personal circumstances in court.
Out of the 31 Superior Courts, Courts of Appeal and Federal Courts across Canada, the WLF found there are four categories of policies:
- courts that have no written policy at all,
- courts that have a gowning policy without any exemption,
- courts that have a gowning policy with an inadequate exemption and inadequate process for seeking an exemption, and
- courts that have a gowning policy with an adequate exemption but an inadequate process.
In 2016, the CBA adopted a resolution urging all Canadian courts to adopt practice directives permitting counsel to depart from traditional gowning requirements to the extent necessary when pregnant, and outlining an appropriate process for counsel to inform the court that their attire has been modified. Since then, many courts across Canada have amended their gowning rules.
The CBA Section has drafted a model gowning directive with four elements:
- There is an explicit exemption for personal circumstances such as pregnancy, a medical condition, or disability.
- Modified attire must be in keeping with court decorum.
- Counsel must advise the court of modified attire.
- Counsel need not discuss their personal circumstances or modified attire in open court or on the record.
Gowning policies with these elements would respect tradition while communicating that all counsel are welcome and included in Canadian courts.