Judge Kael McKenzie of the Manitoba Provincial Court in Winnipeg shares his authentic self with listeners. Judge McKenzie openly discusses the impacts of vicarious trauma on judges, traumas entering the courtroom via court case files and his trailblazer status as the first openly transgender judge to be appointed at any level of court in Canada. This episode was recorded on Feb 15, 2021 which is Louis Riel Day in Manitoba.
This episode covers topics including transgender issues, vicarious trauma, trauma education for judges, resilience strategies and positive transformation in the judiciary and legal profession.
Episode Summary:
Judge Kael McKenzie of the Manitoba Provincial Court in Winnipeg shares his authentic self with listeners. Judge McKenzie openly discusses the impacts of vicarious trauma on judges, traumas entering the courtroom via court case files and his trailblazer status as the first openly transgender judge to be appointed at any level of court in Canada. This episode was recorded on Feb 15, 2021 which is Louis Riel Day in Manitoba.
Episode Notes:
This episode covers topics including transgender issues, vicarious trauma, trauma education for judges, resilience strategies and positive transformation in the judiciary and legal profession.
Myrna: I’m Myrna McCallum, Métis-Cree lawyer and passionate promoter of trauma-informed lawyering. Welcome to my new podcast, The Trauma-Informed Lawyer, brought to you in partnership with the Canadian Bar Association.
I believe that law schools and bar courses are missing a critical competency requirement in their curriculum: trauma-informed lawyering. Becoming a trauma-informed lawyer will, among other things, challenge you to critically reflect on your personal behaviors, beliefs, and biases; call on you to positively transform the way you approach advocacy; guide your practice to avoid doing further harm to others; and ask that you commit to remaining open to learn new and old knowledge you didn't know you needed before beginning your career. Your education starts right here, right now. This podcast comes to you from the traditional, unceded territories of the Sḵwx̱wú7mesh [Squamish], səl̓ilwətaɁɬ [Tsleil-Waututh], and xʷməθkʷəy̓əm [Musqueam] people.
Welcome back everyone to another episode of the Trauma-informed Lawyer podcast. Thanks for continuing to hang in with me, and for subscribing to this podcast, sharing it with your friends and your colleagues, and giving me reviews and ratings on Apple Podcasts—I truly appreciate it. I can't say enough how blessed I feel with respect to how this Covid pandemic passion project has seemed to catapult me into a whole new area of education that I never saw coming, so thank you.
I had an awesome conversation with Judge Kael McKenzie. What can I tell you about Kael? He's the first openly transgender judge appointed to any level of court in Canada. He sits currently on the provincial court hearing primarily criminal law matters in Winnipeg. He’s a member of the Manitoba Metis, so kind of a cousin of mine, let's say. He is dad, and a spouse, and a family member, a friend, an educator, a reader, a shopper, a volunteer, a cook, a fisher—just a human being, and a human being who—as you will hear in today's episode—truly lives with openness, and honesty, and authenticity.
Myrna: Hello, Judge McKenzie, welcome to the Trauma-informed Lawyer podcast. Thanks so much for making time to chat with me today. Maybe before we get started into this conversation, I know there's a couple acknowledgements that you want to provide for all of our listeners so please do so.
Judge McKenzie: Thank you, Myrna, it's great to be here. My first thing that I think I should do. . .I'm in Winnipeg, Manitoba and I am on Treaty 1 territory, the ancestral lands of the Anishinaabe, Cree, Oji-Cree, Dakota and Dene peoples and the Homeland of the Metis Nation. Today is coincidentally Louis Riel Day in Manitoba, and Louis Riel was a leader who represented the interests of the Metis people, and it's a significant day here in Manitoba, and I'm particularly proud because I am member of the Manitoba mate he. The second thing that I have to say, Myrna, is that I'm a sitting provincial court judge—I think I need to say that this is my opinion today that we're going to be talking about, not that of the Provincial Court of Manitoba, but more importantly that I'm not an expert in trauma. Today is going to be about my experience and about some of the things that I've been thinking about.
Myrna: Thank you for the reminder about Louis Riel Day because as a fellow Metis, that matters to me as well, so I'm really glad. For all of our listeners who are outside of Canada and you want to know who Louis Riel is, all you've got to do is do a simple Google search and it will give you some insight into certain events that transpired in this country that have actually led up to the creation of Manitoba, which is where Judge McKenzie is from. I think many people would fairly and rightly say that Louis Riel is the founder of the province of Manitoba . I know that previous to you becoming a judge, you were a Crown prosecutor.
Judge McKenzie: That's right.
Myrna: At what point did you start to think about the impacts the trauma might have on yourself in this profession? Did you learn about it in law school, did it come later?
Judge McKenzie: You know, law school. . .the reason I'm so excited about your podcast, it's very recently I came upon it quite coincidentally with some of the work that I'm doing with the Canadian Bar Association, and I was so excited. It just blew my mind the first time I listened to it and I had to get involved somehow, and that's how we met, of course, is through the judges section and some of the stuff that I'm hoping we can do there. I didn't imagine for a million years that I'd be actually talking to you on the podcast. In law school, I don't think that we ever talked about trauma and, you know, and part of the reason that I think we don't is because we have a certain image of what lawyers are when we go into law school, and lawyers are traditionally the senior statesman, they are mostly white, mostly men—or traditionally men—and people with real privilege and power and all of a sudden, we have this image of how we need to fit within that and it doesn't include anything to do with being trauma-informed. You know, we are concerned about legal principles, we are concerned about doctrines and those types of things, but we're not thinking about the human factor and no one was talking about it when I was in law school. And it's real. It starts on day one and students—like everyone else—come to law school with trauma. We’re all trauma informed; we start off that way, we are born into trauma, and it's a matter of degree, and then how we are able to deal with that trauma, and so, you know, it’s so exciting just to hear the conversations and to know that people are having them and I think we have a long way to go still in the legal profession, but it's encouraging that people are talking about it and I just so agree with you that it needs to be right from law school and right on up through to the judiciary.
Myrna: Why would you say that's really an important piece of knowledge that should be taught early on and throughout?
Judge McKenzie: For all kinds of reasons. First of all, for the people that we're dealing with, we’re not re-victimizing people, we’re not re-traumatizing people. People come in to us with probably some of the most difficult things they're ever going to face in their lives and their own experiences from that, but also for our own preservation. I think that—for me—vicarious trauma is very real and it's something that I'm very alive to. As a judge we hear everything you can imagine and I sit in criminal court, so sometimes the very worst things come before us and we have to figure out ways to process that, but we also have to acknowledge that this is not just affecting me, it's affecting everybody in the courtroom, and everybody in the courtroom comes with that other degree that I was talking about a minute ago.
Myrna: I'm with you. I think the more we can educate ourselves and each other about the ways in which trauma shows up, we’ll be all the better for it as a profession, not just to be able to help insulate ourselves from vicarious trauma and find out, like, explore mechanisms that could help us remain mentally intact if you will, but it also impacts the way in which we have relationships with each other in this profession. I know I listen to a lot of law students and a lot of young lawyers who hope to see a different profession in the next 15 or 20 years—one that centers mental health and mental wellness.
If we were to wave a magic wand and be able to pilot a trauma-informed court, what do you think some critical elements of that might be?
Judge McKenzie: That is a tough question and I'm not sure I have the answers for you, Myrna. You know, I think one thing that I've been very happy to see counsel doing lately is on some of those more difficult cases that we're talking about, is putting some of the evidence—at least what they can—in by a joint statement of facts because sometimes, some of the things that are coming before us, they're not contentious. The issue is one of law, one of maybe a small piece of evidence, perhaps it's identity, it could be, you know, whatever it is. And so what I've noticed is that they've been putting in a joint statement of facts instead. Sometimes they read the joint statement of facts, sometimes they just file it as an exhibit. One thing with images that has been happening lately is there's a synopsis of the images and we don't necessarily have to play them in open court because as soon as we play those images in open court, every single person in that courtroom is now seeing those images and can never unsee them, and so I think that. . .I don't know if this is a move on the Crown or a move on the defence lawyers or who is initiating this, but my experience is that lately that that has been. . .there's still some that take the view that the judge has to view some of the intimate images, for example, that sometimes come before us and sometimes we do, but sometimes it's sufficient enough to say, “Here's the disc, take this back to chambers and take a look at it”, or, “This is what's on this disc”, right? And so I think there are ways that evidence can go in without having to re-traumatize or have the initial trauma for other people who have never seen these images, and I was thinking about it after. . .I think was after one of the very first podcast of yours I listened to, like how many people are affected by what's happening in the courtroom? You know, right from my court clerk, the people in the gallery, the victim, the complainant, other witnesses, the accused person, the Crown, the defence, the judge my assistant who has to read my decisions, and the transcriber who puts them out, I mean, and we just start multiplying that to other people's assistants and, you know, on all the folks that support us on the outside and it's just exponential how many people are being affected by this stuff and so keeping some of that for ourselves is definitely, I think, one way to minimize the trauma to other people.
Myrna: Do you think about how much of what we do, I think —and you don't need to agree with me and you don't even need to comment—but how much I think of what we do is just. . .many of us are just kind of going through the motions, kind of holding up the status quo without questioning, “Wait a second, why do we do it this way? Is there a better way?”, and I mean, that's really why I created this podcast was to just sort of plant some seeds to get people to think about how their work might be impacting them mentally, spiritually, emotionally etc., and is there a better way? I think being trauma-informed—actually applying trauma-informed principles—is one of the better ways that we could do this, maybe not the ultimate better way but I don't have all the solutions. I bring in awesome folks like yourself to, like, have conversations about possibility, and so what my motivation really is on the mental health of this profession because I see when folks are traumatized—whether it's directly or vicariously through their work—I see how that shows up on the bench. I've seen how it shows up in opposing counsel and I've definitely seen how it shows up in myself and I can't help but wonder how many really good people are driven out of this profession because of the mental health risks, you know? I just think there needs to be a better way.
Judge McKenzie: I agree with you Myrna, I have to say, one of the things that for me. . .it's about making sure that we acknowledge that we are experiencing trauma as well, as well as how to take care of ourselves and recognizing the signs and making sure that we have some ways of dealing with that. Very early in my judicial career we had a session on vicarious trauma. I was surprised because I didn't think that judges needed to worry about those kinds of things at that point but very happy to have the conversation and you know, I had very senior judges express things in that session that I was just blown away by, that they were so affected by trauma. Not being able to cry, not feeling joy, being suspicious all the time, being angry, and a whole host of other emotions, you know, and I just think about how much it affects our profession and it's not surprising when we read statistics about incidences of alcohol and drug abuse in the profession or about suicides, and depression, and all of those types of things because I think it's really. . .it's real there is a good reason for it because we're not taking care of ourselves, and we're not recognizing, and we don't ever talk about it, and nobody really wants to hear from us, I think, in some ways, right, like we're really privileged people, especially judges. If you stop and you think about it, you know, does anybody really wanna hear about the judge’s trauma when you know like, “Oh you poor thing, you have security, you have safety, you have vacation, you have power, you have privilege”, right? And I think sometimes we don't feel, maybe, we deserve to have those other feelings as well because we do have all of those things and we should be very grateful—and I am very grateful—but those are definitely things that hold us back in our profession, and law, in our image, and whether. . .if we're experiencing trauma, does that make us less capable? Does that make us less able to do our job? I think no, I think, in fact, recognizing that makes us even more capable and more able to do our job and understand the people that are coming into the courtroom, like, there is. . .people come into the courtroom with trauma. Everyone comes in with trauma, and big trauma, and big things that have happened in their lives, and systemic things, and I just think about the Indigenous folks in our country who come into the courtroom—and this is why parliament has said we have to consider Gladue factors when we are dealing with Indigenous folks because they have experienced trauma as a result of colonization, as a result of the residential school legacy, and it's intergenerational, and it affects each and every Indigenous person in this country—and that's why we have to be trauma-informed. We have to be.
Myrna: A hundred percent. You said a few things that I just want to validate; one is, yes, we want to hear from judges, yes we want to hear about how you're impacted. I mean, I don't know if I'm in the minority—I would like to think I'm not—but I think it's important because I think there's this perception that once you get on the bench, suddenly you're impervious to all of the things that impact us as human beings and in my view, in my experience, the most effective and compassionate and transformational judges have been the ones who show up as their whole selves and reflecting their own humanity and their own understanding and bringing that into the courtroom, as opposed to the ones who hold up the myth of it all that we are above all of this. A
Judge McKenzie: It is a myth, Myrna, it is a myth. We’re not above it all, we’re just everyday people and we all come with all of our things—we definitely have a position and we have a place that we have to deal with but we're still human beings, we still put our pants on one leg at a time.
Myrna: Exactly. Oh, I know it's a myth, I know it's a myth, I just wish more judges were invested in squashing that myth and showing up with a little bit of humility and being a lot more relational, and I get that there is some judges out there who are of the view, like, that to do so could compromise their ability to be impartial, objective, detached or whatever, but I've just seen the difference in judges who uphold the myth and then others who squash it and show up with humility and empathy. The other piece you mentioned about it—which I thought was so fantastic to hear—a trial judge talk about his vicarious trauma because it is so real and when I deliver training to folks on vicarious trauma and just inspire them to think about how it shows up, I'm very clear to distinguish vicarious trauma from compassion fatigue and burnout. Those are not the same things; compassion fatigue is really just about being empty, you can't seem to fill yourself back up again, what you really need is a bit of a vacation and time away and then that tends to replenish your batteries, whereas burn out has more to do with the job, like the job is sucking the life out of you, the job is draining, and it usually is connected to some degree of lack of satisfaction in the job, whereas vicarious trauma is about. . .through your job—usually it's your job as helping professionals or people who are dealing with folks who have a lot of trauma—tends to alter your worldview.
After adjudicating residential school claims for, like, way too long, I ended up thinking the whole world is a dangerous place for children and I didn't really become aware of it until I had grandchildren. So I have a house in Saskatoon and my daughter, and my son-in-law, and my son, and my 3 grandbabies live in my house and I was there one year—I think it was not this past summer, the summer before—and I was in the yard and we have this awesome big double lot and I'm like, “Okay so we're going to put, like, padlocks on all the gates, we’re going to put chains up, I'm gonna get some cameras installed so that all eyes are on the yard”, and then my daughter is like, “What are we doing that for?”, I said, “It just takes one second for someone to come scoop up a baby. You could just be going inside to get a bottle, get some water, bam—baby's gone”, and she's like, “Mom, no one’s gonna steal the babies from our backyard”, and I couldn't figure it out then until she started asking me questions, but I realized that that fear of having my grandchildren taken from me was directly connected to the hundreds of stories that I heard—from Elders in particular—who told me of a time when the government was empowered to kidnap children. So like, you’d have the planes come in, the RCMP planes, or the missionaries, or the Indian agents, and come just take kids, and so I thought whoa, at what point did I start to think that the world is not a safe place for children? And I knew for sure, I have some vicarious trauma that I need to work through.
That said, I think about the low numbers of Indigenous people in particular on the bench across this country, and I can't help but wonder, Judge McKenzie, whether some of that could be attributed to the fact that historically as a people, we've had a lot of trauma in our lives, and I wonder whether folks look at the bench and think, “That job would open me up to way more trauma, make me susceptible to vicarious trauma, and because of the ways in which many courts allow trauma just to roll in without question”, and so I think this is a good place to segue into having a conversation about diversity on the bench. Why is that important and what are some of the barriers—recognizing you don't have all the answers, I don't have all the answers, I don't know who does, but I think it's an important conversation to have.
Judge McKenzie: Well, I think there's a whole lot in that question, Myrna, I do a little bit. . .so just in the spirit of transparency, I was appointed as the first openly transgender judge in Canada and when that happened when I was appointed in 2015, a lot of people wanted me to come and talk about diversity on the bench, which, you know, I know my own experience and I certainly have an idea about diversity on the bench, and but I started thinking about it a lot and I read textbooks and all those things and it wasn't until a few years ago that I started realizing, like, be careful what you ask for a little bit because, you know, before I was on the bench I did all this advocacy work—I was involved in some workers’ rights sessions, I was actually really starting to get into some of that, and I was on this committee, and that committee, and this advocacy group—and, you know, I got appointed and now I'm at a place where people will listen to me and I can't say anything. So I think a lot of people choose not to apply because it's life altering.
When you get on the bench, people, you know, they want your opinion, they want your advice, and you’re an expert to some degree, but you can't help anybody, you can't do anything for anyone and it changes things. I did a lot of work for my community and I had some folks who were really disappointed in me afterwards because they wanted me to be on trans rights committees, and they wanted me to speak out to government, they wanted me to continue to be an advocate and then I couldn't. I think there was the first trans rights march around Pride day and I wasn't sure I should even go because it's inherently political, right? And I certainly didn't want to be on camera if I was gonna go, and you know, people were like, “I don't understand this, it's not like people don't already know you're trans”, and I was like, “Well that really has nothing to do with it, it has to do with the fact that as a judge, we’re always wearing the robes whether we’re in court or not”, and so I think that’s some of it, I think there's some real barriers to the application process as well.
I think that things are becoming much better and I am seeing. . .when I was appointed—and this is just five years ago—there wasn't one single LGBT judge on the bench full time—there was a part time judge—but. . .at any level of court in Manitoba when I was appointed, and that has changed significantly—there now are on the Provincial Court in the Court of Queen’s Bench—you know, I think there was a big gap there and it's not that I hear every trans case that comes before me or every LGBT case that comes before the court, but what it does is, you know, people are aware to the issues and they know where to come to talk to somebody about some of the issues. I've had all kinds of judges ask me questions like, “I have a non-binary person in my court, how do I address them?”, and you know, and they have somebody to come that they can feel safe asking those questions of. It's not that I'm hearing all of those cases, in fact I hear very few of them, I get my share when a trans person comes before the court for whatever capacity, but it opens conversations and it raises education and awareness, and I think it opens people’s eyes to who we are.
I mean, it also is, I think, it was important for me to be open about being trans when I was appointed mostly because I wanted people to see that there's no real glass ceiling for trans people, that we're just like everybody else, we are in all walks of life, all over the place, and same thing with being Métis, same thing with any anybody for any background that they possibly have, we are all the same and we all have the same ability to get there, it’s just sometimes harder. It's hard when—you know, and I went to law school. I was fortunate, I got in through the Aboriginal consideration category so I didn't have the LSAT scores or the marks in university to get in that other people did, but I was really lucky. I was one of the very many people who applied under that category but they only took a certain amount and getting into law school is hard and there's a lot of barriers to it. Sometimes we don't come from the same background, the same families, they can't give us the same access to resources and so, you know, getting into law school—and I think it's becoming better and I think more people are getting into law school from a variety of backgrounds, and the profession is becoming more diverse which means that the bench is becoming more diverse—but there are barriers for sure.
Myrna: I see those quite a bit at different levels but this whole diversity piece, I think what's really important to acknowledge is when we talk about diversity—at least when I do—I think I'm not just thinking about racial diversity, I'm not just thinking about, you know, sexual orientation, like that diversity, but in doing this work around talking about trauma or trauma-informed practice for lawyers, I think about the diversity in terms of mental health that. . .and again, I think it goes back to something that you raised is that, like, we don't all come into the world with a ton of support. Some of us are subjected to a lot of trauma before we come into law school and sometimes it informs our practice areas, and so I think it's important to have a judiciary that also reflects diversity in that regard—people who have actually confronted mental illness or mental health issues and have found resilient strategies that work for them.
So I love that you've been appointed and that you bring all of this lived experience, not just around being trans, but of course being Metis which makes me really happy, and then this awareness around trauma, and the way in which trauma shows up every day, and how as judges—and anyone working in the courtroom—has to be prepared to confront that because its impacts are so significant. We need to have more conversations about this as a profession. Maybe none of us have the answers but if we start to talk about it, then it becomes a safe subject to broach regardless of your role in the profession. Well, and that said, Judge McKenzie, my hands go up to you 'cause it's like, this is awesome that you're willing to have a conversation about it, just to acknowledge it, like that this is a human issue. It's not just a judge issue, it’s not just a lawyer issue.
Judge McKenzie: You know Myrna, you’ve said “Judge McKenzie” like three or four times and I keep meaning to interrupt you and say, “Please call me Kael”. I am a judge, I do carry the robes all the time but, you know, I like to think that I'm a little bit more down to earth then having, you know. . . I'm calling you Myrna, I should be calling you Ms. McCallum if we're going to have that formality.
Myrna: Oh, gosh. Okay, no, please do not call me that. Okay, Kael. Kael it is.
Judge McKenzie: Alright, I'm sorry it took me so long to interject. Each time I mean to but then we get into something so powerful and just wanting to have this conversation so. . .
Myrna: Such a necessary conversation, isn't it? I mean, like as I'm thinking right now Kael, I'm thinking right now about how just by you and I having this conversation, there will be people listening whether they be judges, or lawyers, or law students, who through our conversation are going to see possibility and maybe experience some sense of safety. Maybe this profession is changing where we could have these deep conversations about something that this profession has long been silent about.
Judge McKenzie: You know, the thing with trauma. . .we're so worried about our competency, right? And I think that sometimes, to our detriment, I know like. . .we have to be aware that we all experience trauma and one of the things with this education that we've had on our bench about vicarious trauma is that they are also giving us tools to deal with it. When we start talking about it, you know, the therapist that came in and gave us the education, she's like, “You have to have ways to process what's going on, you have to be able to talk about it, you have to get physical exercise, you have to make sure that you're getting fresh air and you're getting sunlight and you're eating properly, and doing all the things that you have to do to take care of yourself”, and it's only when we start talking about it that we start to think about ways to take care of ourselves and make sure that we're healthier. So it's not about competency, I think the competency issue becomes when we're not talking about it as opposed to when we are talking about it because that puts it out in the open and it gives us the tools to make ourselves well and healthy—taking the time, taking our vacation, setting boundaries, all of those things.
Myrna: Yeah, I'm really glad you mentioned taking vacation for all of those young lawyers listening who think that this profession. . .to be effective or successful in this profession requires working ridiculous hours and never taking time for any of those things that you mentioned, so like early on, it can start to set us up for real harm, I would say.
Judge McKenzie:Ugh. I had to put a sticky over the red light flashing on my phone when I was in private practice because if I sat and I listened to every phone call immediately and didn't set that boundary for myself, I would have been working for days without taking a break because it's just. . .you have to set your boundaries, set your times, and it's good for you, it's good for the client. You're not moving all over the place, like, you have to do it, you have to.
Myrna: I love that you set boundaries, you don't often hear about boundaries in the practice of law. It's like you just keep giving, giving, giving and it always comes at your own personal detriment. I think that's fantastic. So we talked about self-care, so for those of you who are listening, self-care! It's necessary. Boundaries are necessary. I think we should know what our boundaries are when someone asks us a question, “What are your boundaries around your practice?”, and you should be able to list it. If you cannot list it, then maybe you need to self-reflect.
Judge McKenzie: I agree. That's one of the first things that I used to tell clients when I was in private practice. It’s a little different as a Crown, but I did do some private practice for a while and I’d say, “You know, I probably won't be getting back to you until. . .I won't be immediately getting back to you, I will get back to you as soon as I can, but know that I will”, and I did and I think setting those boundaries with people is so important and you know, when you go home at night, sometimes you have to turn the cell phone off, you have to put the emails down, you have to not look at the text messages, you have to not accept phone calls. You know, I had young kids when I was a lawyer and when I was first in law school and they have to come first sometimes, you know? Like it's just the way it is, you have to put yourself, your family, your people. . .otherwise you're not actually doing very good for anybody, especially if you start to crash and all of a sudden, “I can't do this, I can't do this work. I'm burnt out. I'm whatever-the-case-may-be”, or you're not able to function, so I think it's all positive.
Myrna: Crashing looks different for different people and I think sometimes, when we're really deep in it and we've built up our lives so that we're constantly going, going, going, we can't actually see the way in which we are crashing, and it really then becomes almost the responsibilities of those around us whether it's those we’re in a relationship with, those we work with, to be able to say, “Hey, I'm seeing this”, and so. . .I know that's also a hard conversation for folks to have within this profession, to pull their colleagues aside to say, “Are you doing okay?”, or, “What do you need?”, or “I'm seeing this”, like. . . “I haven't heard you laugh in a long time, you used to laugh all the time, what's going on?”, or, “I see you're working a lot”, or, “I see that you're not working at all anymore”, or, “You’re late often”, or whatever it is, right?
Judge McKenzie: It's hard to do those check-ins and sometimes I feel like I'm intruding on people and I'm overstepping my bounds and I do it, it's just hard, but sometimes, you know, we are humans and the human experience and at all levels we need to be in touch with one another and to make sure that taking care of each other.
Myrna: Yeah, especially in this profession. It has to become more collegial that we are here taking care of each other. I know I often I hear this a lot. that it's hard to do that kind of check in with people but I say you know, I think a really good question for folks to kind of fall back on when they see foresee a challenge or they're uncomfortable is just to say, “How are you coping?”, like as opposed to, “How are you?”, I think “how are you” is such conversation killer 'cause it's easy for me to go, “How are you Kael, and for you to go-
Judge McKenzie: “Good, good”.
Myrna: Yeah, “Good, good, okay well I'll see you later”, right? But then if you're like, “How are you coping?”, like, “This pandemic sucks, my wardrobe consists of one blanket that I wear every day now”, I don't know, right? Like if you give a little something and acknowledge that this pandemic is traumatizing for us all, I think that it can attract a meaningful response and then a meaningful conversation 'cause then what they hear is, “Okay, Myrna's not doing well, so maybe I can say how I'm not doing well”.
Judge McKenzie: I actually think the pandemic's been good for that type of conversation. I think people are actually saying, “No, I'm not good, I'm not happy about having to be home, I'm not happy about having to wear masks, I'm missing my kids 'cause they don't live with me, I miss my parents, I need human interaction”, and I think, you know, maybe it’s a silver lining? I don't know but I think people are actually sharing how they're feeling which is really good.
Myrna: Yeah, I'm with you. I think so too. I think we're having more honest conversations today then I think we've ever had and this pandemic has made that possible, and more of us from all walks of life in different parts of the world are having conversations. Like I would have not met half the people I've met but for this podcast and so, not all bad.
Judge McKenzie: No. I've heard this on one of your other podcasts but you know, it seems so strange to be so excited about talking about trauma but it's just. . .I'm just so happy to be having the conversation. I'm just. . .like I said, I was thrilled to hear it the first time, so. . .
Myrna: Well I really appreciate that.
Judge McKenzie: Yeah, I've been shouting your name from the rooftops. . . “Listen to this podcast, listen to this podcast”, because I do think it's so important.
Myrna: I love that and thank you so much for supporting this podcast and this work because you know, I know that people tend to have some kind of, like, visceral response when they hear trauma, but I would say this conversation and this podcast and all of the work that goes with it isn't so much about trauma as it is about transformation. Transforming this profession and the way we show up in it, and the way we support each other, and the way we make space for the things that could harm us.
Judge McKenzie: I really didn't think—when I first met you Myrna—my intention was never to be on your podcast but to make sure that judges were part of it and when you asked me I was just like, “Absolutely, let's talk, let's talk about this”. It's good.
Myrna: What you shared already Kael is that you're the first openly transgender judge appointed in this entire country and that was five years ago. What was that experience like for you?
Judge McKenzie: Well, I wasn't actually prepared for the onslaught of attention that I received and you know, like, people talked to me about being a trailblazer and a leader in the community and all I did was be my authentic self and to be open about it, and there's a lot of power in that, Myrna, there is a lot of power in being your authentic self, being true to yourself, and not compromising because of who you are. I can't change who I am; I am who I am and I just have to live with that honesty and integrity, and if people want to call me a trailblazer, I guess. I mean being the first, obviously, that you become. The media attention and the conversation around who I am and what I am about and. . .it was overwhelming and it detracted a little bit from. . .really about some of my qualifications and about this being a meritorious appointment and those kinds of things, you know, and I certainly would never want anyone to think that I'm just appointed to fill a diversity category if you will, and those kinds of things.
Not that there's anything wrong with filling positions with qualified diverse candidates, in fact I think that's absolutely right and appropriate, but it was hard to be out there and to be in the public and all of a sudden, I had this tremendous responsibility and people were watching me, and so. . .you know, we talk about trauma, I think there's good trauma too because I was really concerned about putting forward a good image of trans people, of Metis people, of judges generally, and trying to do all of that within sort of the image of being a judge and what that means to folks, so you know, it was intense.
Myrna: I can't imagine, sort of, you’re being catapulted. It's not just an appointment—which like, an appointment of course is a big deal and people in your profession, within your province become aware of it and so there's an increased awareness of who you are—but in your particular case given that you busted through this, like, glass ceiling being the first, got you all this national attention at the very least, maybe more than that.
Judge McKenzie: More than that.
Myrna: Yeah so I can imagine that that must have been very sort of, maybe, disorienting? Like I'm someone who really values my anonymity and so I realize. . .you wouldn't think it but it's true, right, I really do and it wasn't until I was halfway through this podcast that I'm like, “Holy shit, I think I just gave that up”, so now I grapple with it but. . .And I could see how when you're the first of anything, people start to look to you as the model. Like you are now the representative, right?
Judge McKenzie: Mhmm.
Myrna: And so how have you struck a balance with all of that to keep centering back to your authentic self?
Judge McKenzie: I think as you get into doing the job and some time passes it becomes a little bit easier. I am not. . . the first week after I was appointed, I went for a walk and I overheard somebody say, “Oh, that's Judge McKenzie over there”, like just as I was walking. I wanted to just, you know, put on a baseball cap and pull it over my head and just hide so that people wouldn't. . .I wouldn't be out in the public like that. But you know, it gives me a little bit of comfort because I think that at the end of the day, I have helped some folks and I had some really interesting communications from people—well-wishers when I was appointed and I had. . . I’ll just share one; a mom, you know, of a trans kid messaged me and said, “You know, I just want to thank you for being open about being transgender because I really had some concern about what life was going to be for my child, and now I know that the world's this kid’s oyster if you will, that he, or she, or they could be anything that they wanted to be and it just feels so much more comfortable going through this journey with them”, and I just thought, “Wow, this parent is. . .just really loves her kid, and just really wants the best for them, and has all of these fears and if I've helped even just one kid to have a little bit of a better life. and little bit better safety, and a little bit more willingness to just go out and be who they are, I think being open about it was worth it all and I think that really helped center me.
Myrna: That’s fantastic. I'm thinking about how this profession tends to bend towards being more conservative, more heteronormative, more cisnormative, how have you navigated the demands of this profession that tends to bend that way? I mean, I read some of your stuff and it sounds like mostly. . .like you started off saying you started this transition when you were already in the profession and that might have influenced how you were received.
Judge McKenzie: So I did transition, in fact, I've known that I've been trans for most of my life and going into law school, I went into law school with that and you know, what a daunting place law school was. I can't even begin to sugar-coat it, I didn't feel like I belonged there, I certainly didn't think I deserved it, and I had no idea how I was going to live within it, and it changed me. I all of a sudden had this image of what female lawyers were supposed to be. I grew out my hair, I became more feminine, I was trying. . .I decided very much if I can't transition, I can at least be the image that I'm supposed to be but you know, it just pushed me over the edge and my dysphoria was so great when I started doing all of those things, and it was particularly so when I went into private practice. I started as a Crown attorney, and then went into private practice and went back to being a Crown attorney.
While I was in private practice, I just couldn't do it anymore, I just couldn't. The more I began to fit the image, the more I needed to do what was right for myself and, you know, I was at a conservative, small law firm. I said to. . .the partners were much older than I was and I thought, “Oh, these real conservative men are going to have an issue with this”, right, even though I was already there, I was an out lesbian at the time, there was a gay man who’s a partner. I knew they had some acceptance, but I didn't know how our clients were going to feel about somebody being trans, and so I said to them when I told them I was doing this that, you know, I'd leave the firm and they were like, “Absolutely not, we don't care, we just want you to be good lawyer”, and I was just blown away that this, you know, older cisgender conservative man was so open to this and they basically said, “You know, our clients are just going to have to live with it”, and it was more just about people being who they were and being a good lawyer. that was what was important, and it was just so refreshing and I was so blessed.
They were so kind to me, they supported me through all of that, you know, and so I took a proactive approach when I transitioned and I just decided. . .I just have to be honest about things, and I just have to be forthright, and just have to let the chips fall where they may and I sent a letter out to all of my clients and I just said, “I've transitioned. I will be now known as Kael McKenzie, please refer to me as ‘he’ or ‘him’ when addressing me”, and I had this young guy, he was 18 years old and had bit of an edge, let's just say, and he called me up and he just told me how proud he was of me and I was just shocked right, like, “Okay, okay”, and then the next thing that happened was I had this woman, she was an immigrant to Canada, very Catholic, and she called me up and she's got a thick accent and she had a hard time pronouncing my name, which was really cute, but she didn't miss a beat. She never missed a beat and I was just like, “Okay, people get this”, right, and I think the barrier for me really was me, and not thinking that people could handle it.
I don't know that our profession is as opposed to diversity as we sometimes think, and I think that even though there may be some areas of the law that are more conservative than others, that there are plenty of areas of the law that have room for all of us, and that have room for diversity, and for the most part, people are really accepting of diversity and they ask questions and they want to know. . .you know, I went to the law courts the first time after I transitioned, I had a judge tell everybody. When I transitioned, when I got my documents with my name changed, I put it to everyone—mass emails, mass. . .you know, judges didn't miss a step when I went into court. They had written my name down on the paper as—cause I changed my last name as well—so they had Mr. McKenzie, they. . .in court, older judges, they didn't miss a beat. No one misgendered me, not a problem, because I was so proactive about it and I was blown away. The only thing that was weird, Myrna, was when I go to the courthouse usually it was like, “Hey, hey, how are you?”, you know, people are happy to see you 'cause you haven't been around the courthouse for a while or something, people were avoiding me.
They were looking away, they were maybe giving me a little nod or whatever or something like that and I thought, this is really weird, maybe people are having more difficult time with this than I thought they were, and then I realized they don't know what to call me, they don't want to mess it up. And as soon as people became more comfortable with Kael, became more comfortable with McKenzie, became more comfortable with “he” and that they weren't going to screw it up, it was exact same thing as it was before and it wasn't that they were having an issue with me being trans or my transition. it was about. . .they were afraid they were going to make a mistake and offend me.
Other than one lawyer, I think, I've not had any negative experiences whatsoever which blew my mind and so for me, it's about being open, being proactive about it, being open about it, being honest and living with, like I said, authenticity and integrity whether people are cisnormative or heteronormative, they certainly haven't led onto it because that's not my experience whatsoever and is it going to be everybody's? Probably not. Are there always people out there who are going to go out of their way to make us feel uncomfortable or something like that? Yeah, there are. But for the most part, it's easy to navigate when you're authentic and you’re true to yourself and you still do a really good job, right? Like, you know, and if you're a good lawyer, you're a good lawyer. If you're doing the work, you're able to do that in whatever environment, I think you're going to be fine. I do think that there probably are some environments that are more challenging, I'm not going to say there's not, but certainly where I was and what I was doing, it was just fine and Manitoba’s pretty conservative for the most part.
Myrna: I know, I'm from the prairies, I was like, “Man, that's a really courageous thing to do, just to put it all out there”. I love it. I love that you shared this story Kael 'cause it gets me thinking about so many things, first being that sometimes the only ones who really get in our way or ourselves because we attribute these beliefs and these biases to how it is that we will be received, right, and what you shared was a great example of that was that, you know, your issues were with you, it wasn't really with others, and then any kind of you know “perceived”—and I'm using air quote—adverse experience was not because you weren't accepted but because people were like, “Oh, how do I navigate this new relationship or this new identity that's now presented”, right, and I think that's amazing. That's so wonderful.
Judge McKenzie: And you know, when I'm awkward about it, other people are awkward about it and, you know, and I just, I found from my experience—and I've given this advice to other people—you just have to do it and you just have to put yourself out there and be who you are and see what happens. I was prepared for my career to come crashing to a halt, I was prepared not to ever have my dreams come true of being a judge, I was prepared for all of that to see what happened because I had to be me, and I had to be myself, and when I did, all those fears were for naught, they really were. It was great.
Myrna: That's amazing. You're like. . .I think the theme of this conversation, in addition to transformation, is authenticity and you're right, like, I think at least in my experience, I can't go wrong if I'm just being me. It's when I try to be someone else that I mess up.
Judge McKenzie: I think I might have done that today a few times as well.
Myrna: This conversation has been fantastic though and I think it emulates so much authenticity and I mean, and I want to say like the piece about like beliefs and biases, the stuff that we project, I think we need to really examine what it is that we're projecting 'cause it is a projection.
Judge McKenzie: Don't get me wrong Myrna, there are definitely places where maybe this might not be safe conversation, but I don't know that the legal profession is that place. My experience, very, very much so, is that it's been very safe.
Myrna: You’re like a positive, amazing, wonderful example of transformation. I love it! I love it. I want to ask one question 'cause I promised my young friend River that I would ask you this question; what would you say to young LGBTQ2S+ lawyers and law students starting out in the profession who feel like the culture of the profession is hostile toward them?
Judge McKenzie: Well I think we've already touched on that Myrna, I hope, I really hope that it's not hostile towards them. I mean, the reality is that as I have already said, not every situation is safe, not every situation. . .and I wish that wasn't the case and it's very sad that it is but I don't know that that that is necessarily the case in the legal profession for the most part. I think that there is space for us all and I think it's a matter of finding that space that fits for you because I don't want to work with people that have an issue with me, right? I don't really want to work in environments that I can't be who I am and do the work that I want to do, and if it's hostile, we might want to be rethinking where we're going I suppose, but I hope that it's not the case because I think. . .I really do believe that our profession’s actually fairly progressive even though some of the work that we do for some of the people that we do it with is not, and so for me, it's really, it's about being. . .I sound like a broken record right, it's you know authenticity, integrity, and demonstrating merit, worth through our work, it has nothing to do with the clothes we’re wearing, it has nothing to do with our hair, our outward appearance, or who we love. It's about being a good lawyer, it's about doing a good job and about being your authentic true self.
Myrna: That's amazing, and I'm thinking about your views on how this profession, well, it's transforming. It's undergoing a transformation, I think, here in British Columbia, that I think is quite evident if you—and you’ve probably heard the BC court has said or has adopted a policy of asking for preferred pronouns to encourage diversity and inclusion and making space for the fact that some people are nonbinary or whatever it might be, right—I think the transformation in the conversations that we're seeing inspire hope.
Judge McKenzie: I think there's a lot of hope. I think that young people are getting it, and I think that the generation that's coming up, they understand diversity in terms of gender fluidity, sexual fluidity, in terms of sexual orientation fluidity, I think that there's room for us and there's room for people of all different shapes, sizes, and however we all look.
Myrna: I think there's a lot of hope and this conversation, I would say, is an example of hope, and transformation, and different perspectives, diverse perspectives and making space for conversations that maybe 20 years ago people were not making space for and you know, I'm really hopeful with respect to how this profession may look in 10 years or 20 years because I really do see and I hear in listening to all of these young lawyers and law students what their dreams are for this profession. They want transformation, they want to show up as their authentic selves and for this profession to make space for that and I think it's happening and you know, your views, your experiences I think are absolutely an awesome example that that's happening and especially on the prairies. I'm giving like a little applause for the prairies because people have some ideas about the prairies that maybe are old, outdated ideas.
Judge McKenzie: I definitely. . .I'm seeing across the country a lot more diversity, at least on the bench, and I think that that's reflective of the legal community as a whole so again, I don't think it's just the prairies, I think British Columbia is definitely showing some leadership, I think that right through to the east coast, from the west to the east we're an amazing country and we have capacity.
Myrna: Well thank you Kael, for having this conversation with me today on Louis Riel Day. I think this is the best time to be having this conversation and I just honor you for your authenticity and for your openness to have this conversation with me on this podcast because I know that your experience is going to ripple out in a really profound and wonderful way for many of our listeners here today.
Judge McKenzie: Well thank you for having me and thank you for the work that you're doing. I think it's just so valuable.
Myrna: Well that's my conversation folks, with Kael McKenzie, Judge McKenzie. Wasn't it awesome, isn't he wonderful? Oh my gosh. If there are other judges out there who want to talk to me about vicarious trauma, or mental health, or you know any of these really important authentic transformational matters you can find me anywhere.
I'm on Instagram @thetraumainformedlawyer and of course I'm on LinkedIn.
I'm also on Twitter @theTILPodcast. Send me a message, let me know what you thought of today's podcast episode—I really love to hear from you and if you haven't already, subscribe, rate, and review on Apple podcasts. I read those reviews so do many others until next time, take care of yourselves.