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No, the Trans Rights Bill Doesn’t Criminalize Free Speech

U of T Prof Jordan Peterson has made C-16 a rallying point for free speech advocates. But experts say he has it all wrong.

Prof. Jordan B. Peterson. Photo via jordanbpeterson.com

A controversial University of Toronto professor has railed against a piece of legislation designed to enshrine human rights protections for transgender Canadians, arguing it will criminalize his right to free speech. But he has it all wrong, say experts.

Psychology professor Jordan Peterson made headlines in late September when he uploaded a YouTube video warning that bill C-16, introduced by the Trudeau government in May, would trample free speech. He has since become outspoken in refusing to use proper gender pronouns, calling them "constructs of a small coterie of ideologically motivated people."

Peterson told media that C-16 risks "criminalizing discussions" about aspects of human sexual behaviour and identity.

"With Bill C-16 and surrounding legislation, it's the first time I've seen in our legislative history where people are attempting to make us speak their language," he said at a free speech rally last week, according to U of T's student newspaper The Varsity, which first reported the video.

But the argument isn't just coming from Peterson. It's been repeated in the House of Commons.

Late last week during debate on C-16, Conservative MP Harold Albrecht told the House that he was "concerned about the fear this bill may cause for Canadians."

"I fear they will not be able to even discuss public policy issues such as this one, on which they may disagree with the government agenda," he said. "Any law that limits legitimate discussion and debate of closely held beliefs presents a danger to freedom of expression, a fundamental value held dear by people across the political spectrum. The right to disagree must be viewed as sacred in our society."

But the bill doesn't do what the two men are arguing it does.

Bill C-16 adds the words "gender identity or expression" to a list of protected classes under the Canadian Human Rights Act and to the Criminal Code.

The Human Rights Act protects certain groups, prone to discrimination, from being fired, evicted, or otherwise discriminated against in federally-regulated workplaces, housing projects, or through Ottawa-run services.

"The addition to the human rights code is not about criminalizing anything," said University of Toronto professor Brenda Cossman, pointing out that violating the human rights code can only be punished through fines or non-financial remedies, like changing hiring practices, but never jail time.

The Supreme Court, in a 2013 case, found that for someone to run afoul of the Human Rights Act, it needed to be actively encouraging hatred.

"People are free to debate or speak out against the rights or characteristics of vulnerable groups, but not in a manner which is objectively seen to expose them to hatred and its harmful effects," the top court ruled.

What's more, Ontario—where Peterson works—already has human rights protections for transgender people in the provincial human rights code, thanks to a bill, virtually identical to C-16, that was passed by the Ontario legislature in 2012.

The Ontario Human Rights Commission released a policy statement in 2014 pointing out that, aside from behaviour and outward appearance, a "person's chosen name and pronoun are also common ways of expressing gender."

In the House of Commons, Albrecht's assertion that the bill would clamp down on faith groups was rejected by NDP MP Randall Garrison—the politician who has been working to get this legislation passed for the better part of five years.

"The bill would do nothing to restrict people's freedom to their own beliefs or to teach their own children," Garrison told Albrecht during the debate. "What it would do is try to protect the expression of hatred and the kind of discrimination in public that takes place each and every day against transgender Canadians."

C-16 will also update Canada's Criminal Code, criminalizing "advocating genocide" and the "public incitement of hatred" based on gender identity or gender expression—adding those two classes to the current list of protected classes: colour, race, religion, national or ethnic origin, age, sex, sexual orientation, and mental or physical ability.

"The use of pronouns is not about advocating genocide," said Cossman.

The bill also means that assault or murder, motivated by bias, prejudice, or hate against people with a certain gender identity or expression, could come with a stricter sentence.

"It's not creating a new offense," said Cossman. "It's saying if there's a hate crime, if there's an assault, and you find that it was motivated by hatred on the basis of gender identity and expression, that could affect your sentencing in the same way that race or ethnicity or sexual orientation already do."

It's also highly unlikely that the failure to use gender-neutral pronouns will rise to the level of hate speech in Canada, Cossman said.

"The way hate speech has been interpreted by the courts is that it's only applied to very extreme speech," she said. "[The misuse of pronouns] is nowhere close."

Cossman, who says reasonable people can disagree on whether or not hate speech laws are a good thing, says adding one ground to the list of identifiable groups isn't a major change.

"It's significant for the trans community, but it's such a small addition that the idea that this is the most egregious just doesn't add up."

C-16 passed by a wide margin in the House of Commons, supported by members of all parties—including the Conservatives—and will be coming before committee in the coming weeks.

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