Mark S. Bonham Centre for
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Bill C-16 – No, its Not about Criminalizing Pronoun Misuse

From the sounds of it, Bill C-16 –  an Act to Amend the Canadian Human Rights Code and the Criminal Code is all about speech – or rather, its curtailment.

Psychology Professor Jordan Peterson has made headlines the last two weeks, claiming that the Bill before the federal House of Commons is an unprecedented attack on free speech.  He has claimed that the new law will criminalize the failure to use individual’s preferred pronouns.  In a rally at the University of Toronto last week, he went so far as to say that the bill is the most serious infringement of freedom of speech ever in Canada.

The thing is – he is wrong.

Bill C-16 does three things.

First – It adds the words “gender identity or expression”  to the Canadian Human Rights Code.  This will prevent the federal government and businesses within federal jurisdiction – like banks – from discriminating on the basis of gender identity and gender expression.

The federal government is late to this game – most of the provinces and territories already include gender identity and gender expression in their provincial Human Rights Codes.

In 2002 the Northwest Territories were the first government in the Canada to explicitly prohibit discrimination against trans people by including gender identity in their Human Rights Code. In 2012, Manitoba added gender identity to their human rights legislation. In that same year, Ontario and Nova Scotia added both gender identity and gender expression to their human rights laws. Prince Edward Island as well as Newfoundland and Labrador followed suit in 2013. In 2014 Saskatchewan made provisions for gender identity, and in 2015 Alberta joined the club, adding both gender identity and expression to their Human Rights Code.

The other five provinces and territories—British Columbia, Québec, New Brunswick, Nunavut Territory, and the Yukon—have implicit protection, having interpreted their Human Rights Codes as including gender variance under existing prohibited grounds.

Bill –C-16 is just the federal government catching up on long overdue human rights protections for individuals within its fairly limited jurisdiction.

Non-discrimination on the basis of gender identity and expression may very well be interpreted by the courts in the future to include the right to be identified by a person’s self identified pronoun.   The Ontario Human Rights Commission, for example, in their Policy on Preventing Discrimination Because of Gender Identity and Expression states that gender harassment should include “ Refusing to refer to a person by their self-identified name and proper personal pronoun”.  In other words, pronoun misuse may become actionable, though the Human Rights Tribunals and courts.  And the remedies?  Monetary damages, non-financial remedies (for example, ceasing the discriminatory practice or reinstatement to job) and public interest remedies (for example, changing hiring practices or developing non-discriminatory policies and procedures).  Jail time is not one of them.

The second thing that the Bill does is add the words “gender identity or expression” to two sections of the Criminal Code. So surely this must be what Peterson is getting at?  Criminalizing something?  Well, lets take a closer look.

It will add the words “gender identity and expression” to section 318(4) of the Code, which defines an identifiable group for the purposes of “advocating genocide” and “the public incitement hatred”  It joins colour, race, religion, national or ethnic origin, age, sex, sexual orientation or mental or physical disability.

Finally, Bill C-16 also adds “gender identity and expression” to section 718.2(a)(i) of the Criminal Code dealing with sentencing for hate crimes.   The provision provides that evidence that an offence is motivated by bias, prejudice or hate can be taken into account by courts in sentencing.  The list already includes race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor.

So what does this mean for pronoun misuse?  Well, refusing to use a person’s self identified pronoun is not going to be considered advocating genocide – unless the refusal to use the pronouns was accompanied by actually advocating genocide against trans and gender non-binary folks.

Similarly, it’s hard to see the refusal to use the appropriate pronoun –without something else –  rising to the threshold of hate speech.   Hate speech laws in Canada have only been used- and only can be used –  against extreme forms of speech – explicitly and extreme forms of homophobic, anti-Semitic or racist speech.   Moreover, prosecution needs the approval of the Attorney General.

It is entirely appropriate for gender identity and expression to be added to the list of identifiable groups.  Hate speech directed at trans and gender non binary individuals should be treated the same as hate speech on the basis of race, religion, sexual orientation.  But, being treated equally means that the speech will have to be extreme and the Attorney General will have to approve the prosecution.  These are not run of the mill prosecutions against professors who refuse proper pronoun usage.  Offensive, sure.  But criminal?  Not unless it was accompanied by some other really nasty speech that promoted hatred towards trans and gender non-binary folks.

To return to the claim that Bill C-16 is the most serious infringement on free speech in Canada?  Well, Professor Peterson is simply showing his ignorance around the history of free speech in Canada.  There have been many endless limitations on free speech in Canada – many with which I disagree.  Obscenity and indecency laws for example have long limited a broad range of literary, artistic and political expression in Canada – indeed far more so than our hate speech laws.

Personally, I am not a big fan of hate speech laws. I worry that prosecutions under hate speech laws end up bringing more rather than less attention to the offending speech, and more often than not, turns the offensive speaker into a martyr.  I would rather see words fought with words. But, I also understand the arguments in favour – as the Supreme Court of Canada has said, it “send[s] out a strong message of condemnation….the community as a whole is reminded of the importance of diversity and multiculturalism in Canada, the value of equality and the worth and dignity of each human person being particularly emphasized.”

As long as we have hate speech laws, then it is a legal no-brainer that trans and non-gender binary individuals should be afforded the same protection as all other Canadians.

And that’s what Bill C-16 is about.  Equality for trans and non-gender binary Canadians.  It’s pretty simple.  And right. And decent.

One Response to Bill C-16 – No, its Not about Criminalizing Pronoun Misuse

  1. Anthony says:

    I’ve been arguing this (albeit much less articulately) point pretty much since the whole thing started. Good luck getting Peterson to admit he was wrong on any of this, because then that would mean he’s been ranting and raving and gained a large amount of supporters based on a lie.

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