Why is Canada's bill C-16 believed to be legislating pronoun use?

  • The Canadian bill C-16 ("An Act to amend the Canadian Human Rights Act and the Criminal Code") has been the subject of heated debate and controversy. I admit I hadn't followed it very closely, but I've seen many articles and videos discussing that it somehow made not addressing someone with their preferred pronoun illegal (e.g. here).

    Today, I finally read what I think is the text of the bill and its accompanying analysis from the official site of the Canadian parliament and, as far as I can tell, all this bill is doing is adding gender identity to the list of reasons for which one should not be discriminated against.

    So, why all this discussion about pronouns? I saw no mention of pronouns there nor any text that would suggest that intentionally not using someone's preferred pronoun could be considered illegal1. So why has so much of the negative reaction to the bill been centered around the concepts of free speech and misgendering people? Is there more text that I haven't found? Am I missing certain implications of the bill's language? Where does pronoun choice come into it?


    1This question is not about whether that should or not be illegal so let's please not get into that here. I am only asking whether this specific bill is actually offering any legal grounds on which such pronoun use could be prosecuted.

    This appears to be asking a legal question, on the proper interpretation of a certain bill. Should be moved to the legal S.E.

    This has become a partisan issue to some degree. Conservative "free speech" vs Liberal "Human rights" as they like to label it. A little reference material of the two sides https://torontoist.com/2017/05/room-jordan-peterson-senators-debated-human-rights/ vs the conservative leader http://www.maximebernier.com/two_threats_to_freedom_of_speech_m_103_and_c_16

  • tim

    tim Correct answer

    4 years ago

    There is no factual basis for the claim that incorrect pronoun use will lead to negative consequences.

    The bill does two things:

    1. It adds gender identity or expression as protected classes under the Canadian Human Rights Act
    2. It adds gender identity or expression as protected classes to the criminal code, specifically to a section about hate propaganda and to provisions about sentencing hate crimes.

    Regarding 1., there has to be an actual discriminatory act (such as refusing housing or services), it is not enough to express an opinion or use wrong pronouns.

    Regarding 2., to be convicted of hate propaganda, one has to actually, intentionally, incite hatred or promote genocide, so it doesn't apply.

    The Canadian Bar Association agrees with this assessment:

    Recently, the debate has turned to whether the amendments will force individuals to embrace concepts, even use pronouns, which they find objectionable. This is a misunderstanding of human rights and hate crimes legislation.

    [...]

    Those concerned that they could be criminalized for their repugnant or offensive ideas fail to understand a crucial distinction in the law. As the Supreme Court of Canada has explained:

    The distinction between the expression of repugnant ideas and expression which exposes groups to hatred is crucial to understanding the proper application of hate speech prohibitions.

    [...]

    The amendment to the CHRA will not compel the speech of private citizens

    Brenda Cossman - a professor of law - agrees with this assessment:

    I don’t think there’s any legal expert that would say that [this] would meet the threshold for hate speech in Canada
    [...]
    “The misuse of pronouns is not equivalent to advocating genocide in any conceivable manner,” she continues. “If he advocated genocide against trans people, he would be in violation, but misusing pronouns is not what that provision of the code is about.”

    The idea that incorrect pronoun usage would become illegal seems to have originated from Jordan Peterson, who is not an expert in law, but a professor of psychology.

    -1. Universities alreay have rules for punishing people for thinking and saying wrong things, **up to the discretion of whoever feels offended**. This includes using wrong pronouns. Your answer asserts that this won't happen, based on a *personal opinion of 2 lawyers expressed as a news bulletin (NOT a legal opinion in court upheld by a judge)*.

    @user4012 please don't shift the focus of the question. I am simply and only asking whether this specific bill actually includes any language that could be used to prosecute people for using one pronoun instead of another. University rules have absolutely nothing to do with national legislation and what one can be prosecuted for in national courts. And that's not the opinion of two lawyers, it's the official position of the Canadian Bar Association which was represented by those two lawyers in a senate hearing.

    There is obviously not going to be a legal opinion from a judge for a law that hasn't passed yet. This is the official assessment of the canadian bar association and a professor of law, replying to the opinion of a professor of psychology. There doesn't seem to be any authority on the subject which actually agrees with his assessment. Regarding existing university rules: how is that relevant? If you want to DV because you disagree with the answer politically, feel free to do so. Your stated reasons do not make sense though.

    I'm no expert in Canadian law, but couldn't the employment discrimination prohibitions mean that someone could argue that a co-worker refusing to use a preferred pronoun amounts to discrimination? In the US, someone might use a law like this to argue that there was a discriminatory "hostile work environment" that the employer needs to correct (by punishing the employees not using the pronoun.)

    @DM my thoughts, too... there are two levels to this, someone making an occasional mistake because of habit (if the trans person was known previously) or mistake; and someone deliberately chosing to ignore the gender change (either by belief or to harass the trans person). In the later it should not be different that someone chosing to call me "Miss" despite myself being a man and ignoring my requests and warnings to not use that style. But of course some people will present it as the former in order to confuse the public, for the reason tim stated in his answer.

    Can you please comment on my answer and point out any mistakes I made? The Bill itself is not relevant to the pronoun issue, but rather the surrounding legislation: http://www.justice.gc.ca/eng/csj-sjc/pl/identity-identite/faq.html and http://www.ohrc.on.ca/en/questions-and-answers-about-gender-identity-and-pronouns

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Content dated before 7/24/2021 11:53 AM