“Clarifying Fury and Joy”: The Creative Process
The Genesis of the Documentary Idea
By Erin Masters
This post can also be read at the Canadian Network of Law & Humanities website: cnlh.ubc.ca
This project began during a time when I was just becoming aware of the active battle for recognition of explicit Charter rights protecting trans people from harmful laws. In Canada, problematic anti-trans laws like Saskatchewan’s Bill 137, Parent’s Bill of Rights[i] have been coming into effect in provinces across the country. They’ve subsequently been challenged for being in violation of the Charter.[ii] Many of these decisions have yet to be made in provincial courts, and while they are important, the greatest potential lies in the possibility that these challenges rise to the level of the Supreme Court of Canada, allowing the SCC to recognize pivotal rights for trans people in our Charter in a decision that would bind the entire country.Similarly, I am writing this only days following the 2025 inauguration of Donald Trump whose new executive orders encourage catastrophic legal and social consequences for being trans. Knowing what Canada’s protections are to prevent us from following suit is more important now than ever.
In the spring of 2024, I was looking for a way to get the news out there that the laws targeting trans people right now could lead to the recognition of Charter rights, and to explore the many avenues that the courts can take to provide those protections. Much like the metaphor that ended up core to the structure of the documentary, I had cracked the egg of awareness and was in the midst of figuring out what to do with it when I attended a talk at the University of British Columbia by Ruth Buchanan about her course on documentary film and law at Osgoode Hall Law School. I immediately approached Professor Etxabe after the talk to ask about the possibility of doing a short documentary about these questions as s directed research project, though the vision I had for the project was quite different then.
Before going ahead with the documentary, however, I decided that I needed to do some research into the topic of Charter challenges. Specifically, I took a deep dive into the avenues through which anti-trans laws can be challenged. To do this, I spent the summer of 2024 working on a written directed research project with the working title “Buried Alive: Time to Recognize Trans Charter Rights” under the supervision of Professor Margot Young. In that paper, I identified five sections of the Charter that Saskatchewan’s Parent’s Bill of Rights potentially violates (sections 2, 7, 12, 15 and 28) and I did a comprehensive overview of the arguments that could stem from three of them. Once confident about the background information, I began working with Professor Etxabe to research, first, a language for talking about the documentary genre, and then the intricate ways that the law intersects with non-fiction film. This was the beginning of the path to the ultimate goal of creating a short documentary that stemmed from my original inspiration but also exemplified techniques and theories of the making of film and law.
The Original Vision
Originally, my idea for this documentary’s purpose was one primarily of instruction. I wanted to raise awareness, so to speak, of the period of change and potential we are living in when it comes to the recognition of trans rights. I came to learn that this vision was closest to the most recognizable mode of documentary: the expository mode, which features voice-over commentary and “problem-solution” structures; that is, documentaries which begin by posing a question or presenting a problem, and throughout the work aim to put together solutions or answers to them. [iii] Aspects of that made it into the final version of my film in the form of sprinkles of formal voice narration and the broader “problem-solution” structure of unrecognized trans rights and how they might come to be recognized in the Charter. However, once I was exposed to the different modes of documentary, I realized I was also attracted to the patient and detached nature of the observational mode, to the personal point of view, stylized editing and embodied affects of the performative mode, as well as to the use of expressive images to reflect on abstract concepts offered by the poetic mode. For those who are interested in learning more about the different modes, I’ve included a table from Bill Nichols’s Introduction to Documentary which gives an overview of the characteristics of each mode of documentary at the end of this article.
There are many reasons why the conventions of the poetic and performative modes drew my attention. For one, a film’s ability to engage an audience’s predispositions and emotions to influence their understanding of complex and abstract topics is heightened by its use of rhetorical persuasiveness. While important in expository film as well, the poetic mode’s focus on mood, tone and affect intrigued me.[iv] Poetic embodiment of abstract concepts such as joy, defiance, disgust and other emotional registers that are difficult for people to accept or effectively understand when they are just named. This knowledge greatly influenced the choices I made for this film.
The Making of Film and Law: Returning to emotions as the ‘language of values’
I put a lot of thought into the effect(s) my documentary would have on its audience and how I wanted to enhance it (them). I found it difficult to identify who I wanted to appeal to and how I wanted them to feel while watching the film. My original audience was intended to be trans people who were seeking information about their legal protections as well as people who generally were under-informed about the threat to trans rights. I was hesitant to try to appeal to those who felt strongly that trans people are a byproduct of left-wing ‘gender insanity’ because their opinions and populist political views were emotionally charged already. Then I realized that all sides of this issue are charged with emotion, and the problem may partially lie in the fact that we don’t recognize there is always emotion before (or alongside) conscious thought.
Many of the anti-trans law making comes as a result of the rise in right-wing populism, which appeals to deep-seated anxieties and encourages divisions in society. But as some human rights lawyers and advocates fighting against populism have come to realize , the case for human rights may be faltering precisely because it fails to acknowledge a need to return to ‘emotion as the language of values’; in other words, there is a need to find creative ways to be persuasive, including through acknowledgement and appeal to different kinds of emotions.[v]
Because of my shift towards identifying and portraying emotions in my documentary, the process of making the documentary relied heavily on the interview at the core of it. Reina Nadler, a PhD Candidate at Peter A. Allard School of Law and trans woman was my incredible interview subject. I knew I wanted to defer to her when choosing what emotions to highlight in the final work—an ethics of deference compelled me. For this reason, I couldn’t plan much of the documentary until after that interview took place. During the interview I asked questions to encourage the expression of emotions that would reflect Reina’s own experiences in relation to trans rights recently. She emphasized joy, defiance and “clarifying fury” along with acknowledging the climate of fear and uncertainty that is affecting trans people today and the opposite emotion of disgust that appears to trigger the persecution of trans people.
I took those emotions and infused them into the production. The main music choice was one that exemplified fury and defiance in its pop-punk genre and its lyrics:
“Oh what a terrible honour it’s been to learn that my blessings are things you call sins. I’ll spend the rest of my life tearing down the Jesus from Texas you put in a crown”.[vi]
Many of the visuals of parades and the final montage of videos and images depict joy, as I wanted a joyful feeling to run through the documentary, just as Reina commented:
“The emotional tenor of trans discourse that I most connect with – that I most want to take into myself and put back out into the world is one of fire and defiance and fierce resistance and, particularly, a kind of joyful warrior sort of spirit.” – Reina Nadler
The ethics of deference is further seen in the documentary’s overarching structure. At the end of the piece, I include the moment in my interview with Reina that inspired the metaphor of the cracking egg which pieces the documentary together.
On the other hand, I also wanted to highlight the disgust and fearful reactions contributing to the anti-trans landscape we are in (although these are not the only emotions to so). By drawing attention to the oddities of disgust, shown in the opening scenes, when contrasted with the beauty, joy, and solidarity in resistance portrayed in the rest of the film, my hope is to invite those driven by disgust to feel something new. This is where documentary film and law come together: by applying the medium of film and/or the conventions at the disposal of a filmmaker, one can impact their audience (on the big screen, or in a courtroom) in ways that influence the discourse of legal issues and social movements. [vii]
The Film’s Final Form
So far I’ve talked about taking inspiration from the poetic, the observational, and the expository modes of documentary. But I also drew from the reflexive mode which entails a film that is self-aware of the process behind its artistic choices. The process of embodying the emotions from Reina’s interview in the editing, visuals and soundtrack of the film highlights my reflection on the constructed nature of the documentary, which hopefully leads to a more collaborative artistic process, for the selection of defiance, joy and fury was not pre-determined but rather discovered during filming.
Finally, I wanted to highlight the participation of the interview subject more than my own as a filmmaker. While avoiding too much participation myself, I acknowledge the filmmaker’s inadvertent and inextricable participation in the telling of the story. For example, the structure of the documentary follows my journey of becoming aware of the problem, researching the potential solutions and seeking a way to tell the world about it. This is reflected in the titles of each part: “Part 1: Anti-trans Laws”, “Part 2: The Constitutional Emergency” and “Part 3: What You Choose to Do”. A documentary’s voice is always a combination of the subject’s perspective, the director’s perspective and the audience’s interpretation[viii]. If the participatory mode of documentary takes on the form “I speak with them for us”[ix], I imagine having taken on an “I give them a platform to speak through me” approach to my documentary.
The final documentary took on a mix of expository, poetic, observational, performative and reflexive forms and the resulting product is one I’m proud to have arrived at. I took on abstract topics in ways that hopefully help people to understand them at an emotional level and not only at a cognitive or logical one. In the end, I hope that I’ve managed to send my audiences away with an ignited sense of clarity, fierce defiance, an empowered sense of joy or that I’ve inspired the slightest shift in understanding.
[i] See The Education (Parents’ Bill of Rights) Amendment Act, SS 2023, c 46.
[ii] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 91(24).
[iii] Bill Nichols, “How Can We Define Documentary Film” in Introduction to Documentary, third ed., (Indiana, 2017).
[iv] Bill Nichols, “How Can We Differentiate among Documentaries? Categories, Models, and the Expository and Poetic Modes of Documentary Film” in Introduction to Documentary, third ed., (Indiana, 2017).
[v] Claire Hamilton, “Speaking Rights to Populism? Using Emotion as the Language of Values” (2023) 15 Journal of Human Rights Practice 692–701.
[vi] Semler, “Jesus from Texas”.
[vii] This is related to the idea of using the affective register to jar a new thought into being as described in Buchanan, R., & Johnson, R. (2009) “Strange encounters: Exploring law and film in the affective register” in Studies in law, politics and society (pp. 33-60). Emerald Group Publishing Limited.
[viii] Bill Nichols , “Chapter 3: What Gives Documentaries a Voice of Their Own?” in Introduction to Documentary, third ed., (Indiana, 2017).
[ix] Bill Nichols , “Chapter 4: What Makes Documentaries Engaging and Persuasive?” in Introduction to Documentary, third ed., (Indiana, 2017).
Bill Nichols, Introduction to Documentary, third edition., (Indiana,2017) at pages 210-211.
This post can also be read at the Canadian Network of Law & Humanities website: cnlh.ubc.ca
Erin Masters (she/her) will be completing her JD at UBC in the spring of 2025 with a Law and Social Justice specialization. Her background is in arts and culture, having studied film while receiving her DEC (diplome d’études collégialles), and majoring in Asian Area Studies during her undergraduate degree.