Canadian Senate Passes C-16 Bill, Heads Down Slippery Slope

  • Sam Mire
  • Jun 20, 2017 11:39AM

The passage of Bill C-16 on Friday is being hailed as a groundbreaking, historical victory for transgendered Canadians that sets a precedent for the rest of the civilized world to follow.

According to its language, the bill would protect Canadians who identify as transgender from discrimination in a manner similar to other groups who are granted legal protection from discriminatory acts or speech that incites violence.

As with any anti-discrimination legislation, this bill, as written, is reasonable; however, it also opens a Pandora’s Box of possibilities that could occupy the Canadian court system with frivolous, baseless lawsuits. It is almost certain that at least one, and likely many more, transgendered job candidates will sue a potential employer should they choose not to hire said candidate, or if they were to fire them for a reason other than their orientation.

The bill, on paper, does establishes two primary amendments to the Canadian Human Rights Act and the criminal code:

1) Adds gender identity or expression as protected classes according to the Canadian Human Rights Act.

2) Adds gender identity or expression as protected classes according to the criminal code pertaining to hate speech and the punishment of hate propaganda.

According to legal interpretations, such hate speech would be aimed at inciting violence toward the aggrieved party (in this instance, somebody who identifies as transgender). In addition, discriminatory acts by businesses or employers would be cause for legal repercussion.

Again, should these doctrines be adhered to by the letter of the law, they remain innocuous, protecting the polarizing transgender community from violations of basic human decency that all deserve but which some groups, including transgendered people, are less likely to be granted.

Unfortunately, human nature is not to adhere to the letter of the law, especially when there are agendas at play, political or otherwise. Prime Minister Justin Trudeau surely has a heartfelt concern for the transgender community, but he and his Liberal government have shown that they are willing to push policy pertaining to social issues further than any government before them. The extent to which an act can be deemed discriminatory, and therefore enveloped by this bill, will remain to be seen.

Most Canadians are likely familiar with University of Toronto professor Jordan Peterson’s arguments against the bill. Inevitably, Peterson believes, the passage of Bill C-16 will lead to, if not directly justify, the fining and arrest of those unwilling to call a member of the transgender community by their preferred gender pronoun. Peterson adds that while he is willing to call somebody “he” or “she” based upon their preference, he stops short of doing the same for those who adhere to one of the 58 gender identities offered on Facebook, for example.

Peterson’s fear, that not using a preferred gender pronoun could be deemed a discriminatory act, or that calling somebody “he” or “she” rather than their preferred pronoun could be categorized as hate speech, seems far-fetched to some. However, one must look to New York City to understand that Peterson’s fears are very much within the realm of possibility, if not likelihood.

Check out this excerpt of official legal guidance from the New York City Commission on Human Rights:

‘The NYCHRL [New York City Human Rights Law] requires employers, [landlords, and all businesses and professionals] to use an [employee’s, tenant’s, customer’s, or client’s] preferred name, pronoun and title (e.g., Ms./Mrs.) regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification.’

This includes:

‘people prefer to use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir.’

For more context, the NYCHRL provides an example of a scenario which would qualify as a violation of this code:

‘Intentional or repeated refusal to use an individual’s preferred name, pronoun or title. For example, repeatedly calling a transgender woman “him” or “Mr.” after she has made clear which pronouns and title she uses …’

As Peterson argues, this code punishes the misuse of gender pronouns as if it were an act of discrimination or hate speech. This regulation of speech punishes speech that is not necessarily hateful nor discriminatory, instead simply a matter of convenience and/or preference by an employer or professional.

Somebody who refuses to call a transgendered employee, customer, student, or tenant by their preferred pronouns is not discriminating, in many peoples’ minds. Contrarily, they are treating them precisely as they treat every other non-transgendered human which they encounter.

We must be very careful not to label the refusal to grant special treatment to any group as discrimination or hate speech.

Calling a transgendered person “she” instead of “zi” is not the same as calling for the genocide of the Jewish people. Likewise, the refusal to call a customer by their assumed pronoun is not discrimination.

Yet, in New York City, the fines imposed upon those who refuse to play by the rules of these gender word games may lose their livelihood, if not their life savings:

‘This is the government as sovereign, threatening “civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct” if people don’t speak the way the government tells them to speak.’ (Washington Post)

These fines are significant, to state the obvious. Imagine the owner of a bagel shop facing a $125,000 because a transgendered individual who is one of hundreds of daily customers repeatedly tells him to called them “zi”, yet he simply does not remember the face. With a judge looking to make a point, this is not an outlandish scenario.

But, it is a scenario that seems outlandish within the confines of free speech, as defined by the Western world. And this scenario is a fair one to bring up within the context of Canada’s passage of Bill C-16.

So, while many will continue to applaud Bill C-16 as necessary and basic legislation which advances the rights of transgendered people, others will see it as a form of special treatment for a miniscule percentage of the population which could have financially crushing consequences for people without ill intent.

The line between discrimination/hate speech and legal free speech has never been so thin, and Bill C-16’s merits and potential pitfalls must be up for debate. This will become even more true as interpretations and enactments of the bill arise, so it would be wise for Canadians, and Americans, to keep their eyes open for the first instance of Bill C-16 being put into action.

If humans are as I think they are, it shouldn’t be long.