…anything that forces someone to express opinions that are not their own is a “penalty that is totalitarian and as such alien to the tradition of free nations like Canada even for the repression of the most serious crimes.” National Bank of Canada v. Retail Clerks’ International Union et al. (1984) SCC; Slaight Communications Inc. v. Davidson (1989) SCC.
With that statement, the Supreme Court of Canada set down the basic principle in Canada, that any government action or legislation which has the effect of forcing its citizens to mouth thoughts or opinions that are not their own, is unconstitutional and an unreasonable infringement on section 2 Freedom of Expression in the Charter of Rights and Freedoms. This principle was reaffirmed by the same court in the case of Slaight Communications.
BILL C-16
There has been much in the news lately regarding federal Bill C-16 which passed the house of commons and is now in the Senate. The bill has brought with it a fair amount of media attention likely on account of its subject matter, but also, the implications of the bill.
Proponents of the bill identify that it is a much needed progressive development in the law to protect historically marginalized groups. There are also critics of the bill. This blog post will examine one of the more intriguing issues; namely, that the bill on its face introduces government mandated compelled speech into federal legislation.
Its appropriate to examine Bill C-16 in greater detail to ensure that it is in compliance with Canadian constitutional principles, and consistent with Canadian traditions of free expression.
The Minister of Justice has summarized Bill C-16 as follows:
“This enactment amends the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination.
The enactment also amends the Criminal Code to extend the protection against hate propaganda set out in that Act to any section of the public that is distinguished by gender identity or expression and to clearly set out that evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance that a court must take into consideration when it imposes a sentence.”
Adding the concepts of gender identity and gender expression to the Canadian Human Rights Act (CHRA) and the Hate speech provisions of the Criminal Code proposed by the enactment appears fairly innocuous and perhaps commendable.
A deeper analysis of the concepts and the origins of the legislation, however, make clear that this legislation may be an unprecedented infringement on freedom of expression, and the principle that Canadians ought to be free from having to mouth opinions and ideologies that are not their own.
HOW DOES BILL C-16 GET US TO COMPELLED SPEECH?
The origins of Bill C-16 can be found in identical legislation that was introduced in certain Provinces including Ontario in or around 2012. The Ontario Human Rights Code (the “Code”) was amended in an identical fashion and with the same words (to include gender identity and gender expression as protected grounds from discrimination).
In Ontario, the human rights regime is comprised of the Code, the Ontario Human Rights Commission (the “OHRC”), and the Ontario Human Rights Tribunal (the “OHRT”).
The Code is the legislation that creates the regime and the law.
The OHRC is the government agency charged with the administration and enforcement of the Code.
The OHRT is the government tribunal charged with determining if there has been a breach of the Code and in fashioning remedies for any breach.
The OHRC and OHRT are accountable to the legislature of Ontario.
In the event there is a breach of the Code, a complainant can commence a complaint before the Tribunal to have the complaint adjudicated.
Alternatively, the OHRC can commence a complaint before the Tribunal.
The OHRC can also intervene in any existing complaint before the Tribunal on behalf of any complainant.
The OHRC can further conduct its own inquiries into real or purported breaches of the Code and issue recommendations.
As part of its mandate to promote Human Rights and to promote awareness of the Code, the OHRC develops legally binding policies.
Section 30 of the Ontario Human Rights Code authorizes the OHRC to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code. The OHRC’s policies and guidelines set standards for how individuals, employers, service providers and policy-makers should act to ensure compliance with the Code. They represent the OHRC’s interpretation of the Code at the time of publication. Also, they advance a progressive understanding of the rights set out in the Code.
Section 45.5 of the Code states that the OHRT may consider policies approved by the OHRC in a human rights proceeding before the OHRT. Where a party or an intervener in a proceeding requests it, the OHRT shall consider an OHRC policy. Where an OHRC policy is relevant to the subject-matter of a human rights application, parties and interveners are encouraged to bring the policy to the OHRT’s attention for consideration.
Section 45.6 of the Code states that if a final decision or order of the OHRT is not consistent with an OHRC policy, in a case where the OHRC was either a party or an intervener, the OHRC may apply to the OHRT to have the OHRT state a case to the Divisional Court to address this inconsistency.
OHRC policies are subject to decisions of the Superior Courts interpreting the Code. OHRC policies have been given great deference by the courts and the OHRT, applied to the facts of the case before the court or the OHRT, and quoted in the decisions of these bodies.
The Canada Department of Justice published a review of the proposed Bill C-16 legislation (linked to an archived version as the original link was deactivated recently) and in doing so has confirmed that:
Q and A on Gender Identity and Gender Expression
- Will “gender identity” and “gender expression” be defined in the Bill?
- In order to ensure that the law would be as inclusive as possible, the terms “gender identity” and “gender expression” are not defined in the Bill. With very few exceptions, grounds of discrimination are not defined in legislation but are left to courts, tribunals, and commissions to interpret and explain, based on their detailed experience with particular cases.
Definitions of the terms “gender identity” and “gender expression” have already been given by the Ontario Human Rights Commission, for example. The Commission has provided helpful discussion and examples that can offer good practical guidance. The Canadian Human Rights Commission will provide similar guidance on the meaning of these terms in the Canadian Human Rights Act.
And with that statement of intent from the Department of Justice we see that the federal Human Rights regime will mirror that found at the provincial level including the policies.
The OHRC has produced a policy on gender identity and expression and what constitutes harassment and discrimination, including “refusing to refer to a person by their self-identified name and proper personal pronoun”.
Thereafter, the OHRC clarified its policy by creating a Question and Answer on gender identity and gender expression which seeks to define these terms, and to set out that the refusal of a person to use the chosen/personal/preferred pronoun, or deliberately misgendering, will likely be discrimination.
What this means is that if you encounter a person in a sphere of human activity covered by the Code, and you address that person by a pronoun that is not the chosen/personal/or preferred pronoun of that person, that your action can constitute discrimination.
Further, in the event that your personal or religious beliefs do not recognize genders beyond simply male and female (ie. does not recognize non-binary, gender neutral, or other identities), you must still utilize the non-binary, gender neutral, or other pronouns required by non-binary or gender neutral persons, lest you be found to be discriminatory.
It is the OHRC policy requirement that persons must use the pronouns required by the portion of transgendered individuals making that demand that constitutes compelled speech.
Persons not wishing to use those pronouns (or any pronouns for that matter), or not able to use those pronouns as offending their deeply held beliefs, or their faith and religion, are afforded no ability to abstain. In short, the OHRC requires that you use the words required by the proponents of Bill C-16.
WHAT’S THE BIG DEAL? – WHAT IF I DON’T USE THE PRONOUNS?
Some might perceive the compelled speech requirements inherent in the Code, and Bill C-16 as minor, particularly given the widely held opinion that a failure to follow the compelled speech stipulations will not result in serious criminal sanction.
This opinion may very well be correct, but not because the legislation lacks the ability to bring forward serious criminal sanction. In fact, breaches of Human Rights Tribunal orders can and have (at the federal level) resulted in imprisonment. Further, the Hate Speech provisions of the Criminal Code can result in increased sentences for those found guilty.
Focusing on the Human Rights Tribunals, and particularly the OHRT, the path to prison is quite straight-forward.
The OHRT can issue both monetary and non-monetary orders. Monetary orders are generally restricted to general damages to a complainant. Non-monetary orders can be anything determined by the OHRT as appropriate in the circumstances including public interest remedies.
Examples of non-monetary orders, include, but are not limited to:
– requirements to communicate or publish an apology or a publication of the facts of the case and the resulting order;
-non-defamation or gag orders (to refrain from making further offending statements);
-non-defamation publication bans (to refrain from printing further offending statements);
– orders to undertake sensitivity or anti-bias training.
While monetary orders can result in imprisonment, the path is somewhat less direct and generally related to a failure to abide by some other court process in the context of a complainant’s efforts to enforce a monetary award (contempt of a garnishment, examination in aid of execution, or writ of execution process).
With respect to non-monetary orders the path to prison is considerably more straight-forward and generally as follows:
Section 19 of the Statutory Powers Procedure Act (Ontario) (SPPA) states that an order of the OHRT is in fact an order of the Superior Court.
Section 13 of the SPPA states that the OHRT can pursue a breach of its own orders by pursuing an order for contempt before the Divisional Court (Superior Court).
Rule 60.11(5) of the Rules of Civil Procedure (Ontario) confirms that where the court finds a person in contempt, they can order imprisonment for an indefinite period, in addition to fines and other remedies. Further a judge can issue a warrant for the arrest of any person against whom a contempt order is sought.
The Superior Court does resort to imprisonment to compel compliance with non-monetary orders. There are numerous cases where contempt of a non-monetary order resulted in imprisonment with many as recent as 2013.
The same mechanisms and procedures can be found at the federal level and they have in fact resulted in the imprisonment of persons who breached the orders of Human Rights Tribunals in other provinces and federally.
Now most persons faced with this ominous path to prison would likely comply with the orders to avoid prison. However, if an individual deliberately chose not to use the mandated pronouns and then elects to breach a resulting non-monetary order of the OHRT, that person could find themself in prison for that position.
The likelihood that contempt of a Tribunal order will result in imprisonment, remains extremely low. The risk of this outcome is dependent to a large extent on the benevolence of the public servants that staff the Human Rights Commissions and Tribunals, as well as the disposition of the justices of the Divisional Court (or the Federal Court). If the Commissions and Tribunals wish to pursue the policies and the requirement for compelled speech, and the Divisional Court/Federal Court find a clear case of contempt of the underlying Tribunal order, an order for committal could result.
There is no legal or procedural barrier to a prison term, and in fact, the law and procedures are written in such a way as to make this entirely possible.
IS THERE SUCH A THING AS “VALID” COMPELLED SPEECH?
In very narrow and restricted situations, the courts have allowed legislation that is in the nature of compelled speech. However, these exceptions are extremely few, and have been restricted primarily to the commercial advertising realm including mandatory health warnings on cigarette packaging, and the requirement that persons applying for Canadian citizenship must pledge an oath to the Queen. The Supreme Court found that mandatory health warnings on cigarette packaging are prima facie unconstitutional as offending section 2(b) Charter rights with respect to freedom of expression, however, the court found the offending compelled speech did not prevent the companies from expressing their own opinions on their packaging and was saved by section 1 of the Charter, as the court stated that the warnings were demonstrably effective. With respect to the oath to the Queen, the courts found that while it incidentally affected freedom of expression by compelling speech, it did not extinguish a person’s right and opportunity to publicly disavow the message conveyed by the oath and therefore it was not unconstitutional.
The Supreme Court of Canada stated in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at p. 279-280.
“If a law does not really deprive one of the ability to speak one’s mind or does not effectively associate one with a message with which one disagrees, it is difficult to see how one’s right to pursue truth, participate in the community, or fulfil oneself is denied.”
The questions to be asked with respect to C-16 and the mandatory use of pronouns remain:
1) is there an opportunity to publicly disavow the usage of pronouns and the underlying gender theories in the legislation?
2) Does C-16 deprive one of the ability to speak one’s mind or does it effectively associate one with a message with which one disagrees?
If the answers to question 1 is “no”, and the answer to question 2 is “yes”, then C-16 would appear to be unconstitutional.
CONCLUSION
In summary:
- Bill C-16 will mandate the use of certain language enforceable by the government;
- The mandated language may not be consistent with the opinions and beliefs of all persons in Canadian society;
- It is not clear that one can publicly disavow the mandated language; and,
- With the passing of Bill C-16, a failure to use the mandated language can result in the power of the state being brought to bear on you, resulting in punishments up to and including imprisonment.
Given that the Supreme Court of Canada has found compelled speech to be a “penalty that is totalitarian and as such alien to the tradition of free nations like Canada even for the repression of the most serious crimes”, it might be appropriate to examine Bill C-16 in greater detail to ensure that it remains consistent with Canadian constitutional principles and Canadian traditions of free expression.
D. Jared Brown – Counsel
Case in Point 
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Excellent Analysis and breakdown there has been a lot of talk about this and misconceptions that needed to be cleared up. The very fact that in the bill “Gender Identity” and “Gender Expression” are not defined should really set off some red flags.
Also it should be noted that anyone who is Non-Binary, Gender Fluid or any other “Identity” that is not Male or Female are not actually Transgender, they are what has been dubbed “Trans Trenders”. All of those terms have been created either in radicalized Gender Studies courses or Tumblr.
Great Article.
Thank you for greatly increasing my understanding of the nuts and bolts of this issue.
Very interesting! Here’s another wrinkle: What about genderless languages that do not distinguish between “he”, “she” and “it” in third person singular pronouns. Some individuals who speak such a language as their first language have ongoing challenges in using correct pronouns in English, and often make innocent mistakes. In all likelihood, many of us will make inadvertent mistakes in this new world of compelled pronouns. Presumably, human rights tribunals will not go after such individuals. -JR
Canada reminds me of communist Romania more and more.
It seems like, right now, ”progressive” goes down a completely different path than what the general population thought. We are being aggressively pushed by the alt-left special interest groups toward attitudes and laws at odds with democracy.
Thank you very much for continued work on this. Best wishes.
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Thank you for elaborating on this legislation. Your effort is much appreciated.
Is this any different than racial epitaphs though? If I called a black person the “N Word” I would be in some degree of trouble as they’re protected. Is that not compelled speech?
There is no prohibition against using racial epithets, there is however a requirement to use gender neutral pronouns when called upon. While the law can prevent you from using racial epithets if it is deemed harassment, the law is restricting what you can say and leaving open other manners of expression. With C16, the law is prescribing the words you must say.
Actually, no. It’s exactly the same, misgendering is actionable only if deemed harassment. The threshold for “hate speech” is MUCH higher than misgendering, one has to “vilify” trans people. Sheila Jeffrey’s “parasitical inhabiting of bodies” is a likely example of hate speech.
According to the OHRC, misgendering is a form of discrimination so it can be actionable even if it doesn’t meet the test of harassment. Further, the law instantiates a theory on gender (that there is no biological basis to gender), and brings forward the requirement to affirm that theory through the use of gender neutral pronouns. If someone were to express the opinion that there is a biological basis to gender, or that non-binary genders are not a scientific fact, would that not be villifying non-binary and gender neutral individuals? Under the wording of this legislation, it would appear such opinions are discriminatory, harassment, and potentially hate speech.
Discriminatory, yes, but discrimination applies only in areas where free speech is already not a concern, areas where you already have to use formal terms such as spouse when you don’t believe in them.
Moreover, the use of gender neutral pronouns actually does not positively affirm this opinion. Compare the fact that you are now forced to use Ms. instead of Mrs. or Miss when requested. This change came because of anopinion, instantiated in law, that a woman’s marriage does not determine her status. you might believe it actually does, but your use of Ms. does not compromise your freedom to hold that belief.
The opinion that “that there is a biological basis to gender, or that non-binary genders are not a scientific fact” would not in itself be vilifying. Things like “the trans and non-binary community is targeting children for propaganda” or “is taking away the rights or women” could qualify.
“Ms.” was not instantiated by legal fiat. It was gradually adopted into common parlance and usage because it represented a good tool, and society saw utility in using it. This may happen with the pronouns brought forward in the Ontario law, and C16, however, the adoption into parlance and usage is being mandated/legislated by the government, rather than waiting for the traditional evolution of language.
“There is no prohibition against using racial epithets”
This does not lend very much to your credibility in this debate. If you are using the OHRC to found the argument for whether or not there is a prohibition against using the wrong pronoun, you would do well to look at what the OHRC says regarding race under their relevant policy (or policies).
It takes about one minute on the OHRC to find language clearly akin to that regarding willful under their policy on Race and Racial Discrimination.
“In many situations it should be obvious that the racially based conduct or comments will be offensive or unwelcome. The following types of behaviours would in most instances be considered ‘a course of comment or conduct which ought reasonably to be known to be unwelcome’:
racial epithets, slurs or jokes”
Number one on the list. And this isn’t new, as the policy was originally published back in 2005. So yes, this is exactly like racial epithets. People are being compelled to use language other than that which has been reasonably deemed offensive, and reasonably construed as harassment. This applies to religious groups, racial groups, sex, gender identity, sexual identity, etc. This is far from a novel concept yet the only reason why it has legs is because of the inherent stigma associated with the social group the language covers. Furthermore, it is a considerable leap to associate C16 with consequences to any significant number of Canadians given that most will never be in a position to be covered under its jurisdiction (the number of Canadians employed in the federal sector is something like 10%). On top of that, gender identity had previously been read into the Act in past supreme court decisions, making the outcome a mere formality rather than anything of direct consequence.
It would be one thing if the argument were simply being structured on the basis of the existing provincial legislation and policy guidelines which actually ARE of consequence to most Canadians, but this attempt to assert that it’s going to change as a result of C16 rather than the reality that it would have been understood to have changed most thoroughly in 2012 when the bulk of provinces and territories amended their Human Rights legislation is silly, pure and simple.
All in all, it’s quite absurd that so many have attempted to create an issue when this has been on trend in other covered arenas for as long as the original human rights language has existed.
Thanks for your engagement with the comments section.
It would appear that you have not bothered to read the blog post itself.
I encourage you to read the blog and the totality of the commentary and discussion which you decided to excerpt including but not limited to the actual post:
“There is no prohibition against using racial epithets, there is however a requirement to use gender neutral pronouns when called upon. While the law can prevent you from using racial epithets if it is deemed harassment, the law is restricting what you can say and leaving open other manners of expression. With C16, the law is prescribing the words you must say.”
That being said, I acknowledge the effectiveness with which you erected and then slayed the straw man of your own making.
Actually, the law is primarily *prohibiting* the (persistent and wilful) use of “biological” pronouns when people do not want them. You can still choose to use “they” for everyone, without singling out trans people. Besides, there is clear precedent of people being forced to say stuff at work regarding race. If you call white men “Mister” and do not call black men “Mister” you are clearly in breach.
How is the answer to (1) possibly no? The law applies only in “specified social areas” such as employment, housing, and provision of education. What prevents a person from expressing their beliefs during the time they are not on duty in any of these areas?
The “specified social areas” are fairly extensive (education, housing, employment, provision of services) and accordingly, human rights legislation has wider application then you may have considered. Further, C16 also amends the criminal code which has blanket application.
In all of these social areas free speech is already severely curtailed. And the Criminal Code amendment draws upon existing definitions, there are precedents around them. Important one: https://en.wikipedia.org/wiki/Saskatchewan_Human_Rights_Commission_v_Whatcott
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Your comment was cut-off during posting, but from what I can see, you are doubting that the legislation compels speech. It is my opinion that the bill compels not only speech but also opinion and expression. The legislation instantiates a theory on gender into the law (that gender has no biological basis), and prohibits words, expression, and opinions that deviate from that government sanctioned theory. This is in addition to the policies of the Ontario Human Rights Commission that compel the use of gender neutral pronouns.
Your opinion is wrong about compelling speech, opinion or expression. Pronouns are a matter of courtesy, not of opinion. The place to express your opinion is definitely not in provision of services, housing, or employment. Higher education does have a place for it, but personal courtesy does not negate it. Compare: one is entitled to an opinion that only a man and a woman are married and that only a mother and father are parents, one is entitled to proclaim that opinion, but one still has to use formal terms in these same social areas.
To clarify: you are right that legislation instantiates a theory of gender into law (though I am not convinced it is that particular legislation, rather it’s the legislation allowing change of gender markers on documentation, as I understand that is in the provincial level in Canada).
You are, however, wrong in that the citizen is unduly compelled to express that opinion. There are limited circumstances when this opinion is enforced, but these are the same circumstances when other controversial opinions instantiated into law (such as the nature of marriage and parenthood) are also enforced. Unless you hold to some kind of absolutism in this regard, as exemplified by Kim Davis, who refused to “express opinion” for same-sex marriage in her purely official capacity as a clerk.
(I have noticed something interesting about that case. The judge, Bunning, was Catholic. So here’s an experienced Catholic judge who was likely forced, by his position, to decree divorces between Catholics, though his faith proclaims such divorces to be invalid. And then this upstart comes and claims she can’t rubber-stamp someone’s marriage. I guess he had a good reason to send her to the slammer).
It would appear we are in agreement that there is compulsion in C16, and you have identified other similar laws. Where we diverge is on whether the compulsion of words and opinions is the appropriate role of government and human rights legislation.
Are you saying that at least positive compulsion in words is an absolute no? What do you think of the Kim Davis case, then?
I think the government should not be in the business of compelled speech. I see the Davis case as distinguishable. As far as I know, she continued to have the right to express her opinion on same sex marriage, however, she could not deny the service of a marriage licence on account of those opinions. There is minimal interference with her freedom of thought, belief, opinion, expression, and conscience as she is free to disavow the government mandated policy/opinion on same sex marriage. She is not really being forced to mouth words or opinions that are not her own. While this may be disputed by others, from my vantage point, being compelled to provide a service is not the same as being compelled to hold certain thoughts, opinions, beliefs, and to mouth government mandated opinions and words. The Colorado cake baker failed in the US Supreme Court because of the difference between compelled actions and words/opinions.
The key issue from my perspective is are you afforded the opportunity to disavow the government mandated opinions and messaging? If yes = not compelled speech. If no = compelled speech
I would agree with your test, but I do not see how provisions about misgendering being discrimination fail it. “Discrimination” applies only to actions in limited contexts. You have to say certain formal words in your position providing a service or concluding business; after hours, you’re free to speak your mind. Of course there is the thornier issue of academic freedom in higher education, but the debate there appears mostly driven by university policies and union debates, not legislation.
The hate speech provision could be construed too widely but I think SHRC v Whatcott takes care of that. “Merely repugnant or offensive expression” is excluded from hate speech, and the threshold is “detestation” and “vilification”. This seems pretty easy to get around; detestation is purely a matter of form.
I also wanted to stress that the gender issue is in no way groundbreaking and that the nature of marriage and parenthood seems to evoke the same questions already.
I appreciate your engagement on the issue, but I think we’ve reached the point of fundamental disagreement. It seems we agree this is compelled speech, where we disagree is whether it is a justified infringement in both in the legal constitutional sense, and in the moral sense.
Maybe so. Is it your position that, at least for someone not employed by the government (to get around Kim Davis), expression of opinions and corresponding language should always be protected (at least from state interference, as opposed to corporate policy) at work, even if the opinions or language are discriminatory towards an employee? Whether that be referring to a same-sex spouse as “friend/partner”, using biological pronouns in lieu of preference, referring to a Muslim’s religion as a terrorist breeding ground, and so on?
If this is your position, then yes, we have a fundamental disagreement about the nature of acceptable regulation of the workplace.
That is not my position. Restrictions on speech (things you cannot say) have traditionally been within the domain of government regulation. With C16, the government is mandating what you must say. The authoritarian difference is an order of magnitude more significant, so much so, that the Supreme Court has determined such efforts on the part of government to be totalitarian and alien to the tradition of free nations like Canada.
So how is mandating the use of pronouns at work different from mandating recognition of same-sex marriages at work? If there is no difference, what does C-16 add, in principle, that was not there before?
(There are also educators mandated to recognize same-sex parents as parents, but I guess you’d apply a different standard because they are government employees. As, btw, is Jordan Peterson, so his personal claim was especially egregious).
There is no law mandating recognition of same-sex marriage at work, in education, or anywhere. People are free to have and express their own opinions on same-sex marriage in Canada. The Davis matter involved actions, not opinions/expression. C16 is a vastly different situation.
But isn’t one required to provide marriage benefits to same-sex married couples on an equal footing with married couples as traditionally defined?
I can understand a narrow line of criticism about saying specific pronouns but would the singular “they” not be a safe harbor? “They” does not express any sex or gender, the only idea it promotes is about language itself (that there can be a single neural pronoun).
The law is such that you cannot discriminate against someone based on marital status. The law does not mandate that you must agree with the concept of same-sex marriage, or use approved words or opinions related to same-sex marriage. It simply states that you cannot deny someone services, treat them adversely in employment, or harass them (etc.) on account of marital status.
There is no law in Canada that has the potential to impact people in their everyday life (with the exception of C16) that requires someone to use a specific word or set of words when addressing someone, or to support a government mandated opinion through the use of those words.
Yet if a company provides any spouse benefits at all, or otherwise asks about marriage, it has to accept same-sex marriage on an equal footing with opposite-sex marriage. Therefore, documents that people write (and by extension read out) have to use words “John is married to Steve”, which, in fact, explicitly affirm sex-same marriage.
And then there is the Masterpiece case, which, as I understand, in Canada would be a foregone conclusion; marriage service providers (except religions) are bound to affirm same-sex marriage. And also the UK Ashers case, which, in fact, I consider to be going too far, because that cake was not a wedding cake for John and Steve, it was a political campaign cake – and are you sure that can’t/didn’t happen in Canada?
On the other hand, the use of the single they pronoun does NOT affirm any theory of gender at all. And as far as I understand it remains a valid option under C-16. And therefore there is, in fact, a way to avoid affirming the theory of gender in that law while not falling afoul of it. My suggestion to those wishing to avoid affirming any transgender status at all, as anything different, is to use the single they pronoun in ALL workplace communication, not just for transgender or nonbinary people. Simply remove all references to sex or gender and end it all.
The fact that it is called “hate” speech makes it clear that they are making laws against emotions.
The emotion ought not matter, and people ought not be punished for their emotions, but only for the action. Emotions are sometimes used as mitigating factors to LESSEN the punishment (I disagree but it is traditional), but should never be used to INCREASE the punishment.
This is an argument against hate speech legislation in general, not specific to gender, right?
Upon some thought.
“Restrictions on speech (things you cannot say) have traditionally been within the domain of government regulation. With C16, the government is mandating what you must say.”
How about we agree on the standard you offer?
How about prohibiting the use of biological pronouns when the person is against them, as opposed to mandating preferred ones? “They” is neutral, or you can always use the name.
One can use a simple *negative* rule – do not mention one’s sex, including mentioning by means of pronouns, if one is not happy with it being mentioned. Which is what we also do with race and, dammit, even weight (the latter may not be mandated but it obvious politeness). It’s just that our language normally relies on mentioning sex pervasively even if it is completely irrelevant to the topic at hand. Well “it has always been spoken that way” is not a compelling need.
And now – is there *any chance* that one could somehow fall foul of C16 while following this negative rule?
Historical legal restrictions on speech do not prevent the usage of certain words, but rather prevent certain speech behaviours. Examples, you cannot defame or libel someone, you cannot harass someone, you cannot engage in hate speech, or incite violence with speech. They do not prescribe specific words that are forbidden, but rather behaviours (although with hate speech laws the line is admittedly less than clear). Your *negative* rule attempts to make the use of biological pronouns specifically forbidden. The outcome you seek was already available under the existing human rights apparatus (http://vancouver.ca/police/policeboard/agenda/2015/0506/1504V11HumanRightsDecision.pdf) where transgendered individuals were protected under the grounds of sex. When this was pointed out to the Senate at the C16 hearings, they dismissed it as insufficient, as the proponents of C16 explicitly wanted the theory of gender as a social construct and separate from sex encoded into law. C16 is the state mandating a theory on gender into law, a theory which cannot be disavowed or challenged without running afoul of human rights legislation and/or hate speech provisions.
The behaviour being prohibited is “bringing attention to a person’s biological sex against the will of the person”. I would suggest that, in the context of the workplace, bringing attention to *any* characteristic of a person not relevant to work against the will of that person can easily become harassment (for example, facts that one is an immigrant or is bald – both objectively existing things).
The only difference is established patterns of speech. One can easily avoid talking about nationality or hair, but sex is traditionally embedded in the language used for purposes totally unrelated to sex. This is why removing unwanted attention to sex involves preferred pronouns or at least the singular they.
The problem is the pervasiveness of gender/sex in speech. Society may move to neutrality, however, that has not happened yet organically (as is normally the case), and now the government is forcing the issue. The real battle for proponents of C16 style gender laws will be in non-english languages like French where I understand the language itself is inherently gendered.
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What ramendik is not realising is, that if this bil; C16 is passed it will open the flood gates to a curtailment of ‘free speech’ & ‘Free Thought’! If a government can force upon you what you should say with no regard as to whether you agree or even believe in what it is that they expound. This is just the beginning. In other words, because the letter of the policy is so arbitrary this law can be expanded to the curtailment of books that don’t proport the new found ideologies. Are we to watch book burning?
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Fantastic