Bill C-16: Careless Use of Gender Pronouns Won’t Result in Handcuffs
Queen’s Law invited Professor Kyle Kirkup from the University of Ottawa to speak to students about the substantive qualities of Bill C-16 — the Bill about gender identity and expression currently going through the Senate. Professor Lisa Kelly opened the seminar by highlighting that this talk arose directly out of student desire for a more informative discussion after the Peterson versus Pardy “debate”. The message to students was clear: if you want to know more about a subject – mobilize!
Professor Kirkup began by laying out the legal framework under Bill C-16. The Bill adds “gender identity” to existing provisions in the Canadian Human Rights Act and in the hate provisions of the Criminal Code. It is key to remember that federal Bills do not govern universities.
For those who believe that this Bill is going to muzzle their rights in the classroom — sorry, but the Ontario Human Rights Code already accomplished that in 2012, when it prohibited discrimination based on gender identity and expression. Moreover, there is long history of human rights tribunals finding that transgender identity issues and complaints are captured by the words already in the Act (i.e. “sex”). So, the “change” under Bill C-16 has effectively already happened. An opponent may ask why gender identity and expression needs to be expressly added at all then. The response is that there is a practical reason to making it crystal clear: let’s finalize the inclusion of gender identity and expression and stop arguing about it.
The rhetoric emerging out of those who oppose this Bill is “misguided”, said Professor Kirkup. The threat to free speech is empty and the suggestion that suddenly the use of the wrong pronoun will put you in jail is hyperbolic and unfounded (specifically in the case of the Canadian Human Rights Act, because human rights tribunals have no power to impose criminal sanctions).
Empirical data provided by TransPULSE, a study housed at Western University, paints a stark picture of the trans-experience. The majority of respondents to TransPULSE’s studies reported living below the poverty line, 43% of respondents had attempted suicide, 20% had been targets of physical or sexual assaults and 34% had been verbally harassed or threatened. These are the material conditions the federal government is trying to respond to.
It’s important to note that all the provinces and territories except New Brunswick have a prohibition against discrimination on the basis of gender identity included in their respective human rights codes. The first was the Northwest Territories in 2002! There has been no curtailment of freedom of expression in these jurisdictions, and really, the federal government is showing up late to the party.
The changes to the Criminal Code are the minor amendments of inserting “gender identity or expression” into the definition of “identifiable groups” for s. 318 Genocide, s. 319.1 Public Incitement of Hatred and s. 319.2 Wilful Promotion of Hatred. For those who fear they are going to be locked up for using the wrong pronoun, here’s my take on what Professor Kirkup had to say:
Calling someone by a hurtful pronoun does not constitute genocide, so relax.
Promotion of hatred provisions are rarely used because of their careful tailoring and the onerous steps a prosecutor must go through to prove the offence (including proving the severity and deliberateness of the act, not to mention the fact that for some provisions the Attorney General has to approve the prosecution).
So, the careless use of the wrong pronoun won’t result in handcuffs anytime soon.
The other section where gender identity is added in the Criminal Code is in the sentencing provision: s. 718.2. This only kicks in once the elements of the offence are made out. In the example of an assault, it must first be shown that the perpetrator committed the assault. And then, there must be proof that the perpetrator committed the assault because they hate the victim based on their gender identity or expression. It seems absurd to imagine a scenario where a person uses the wrong pronoun and these sentencing provisions are triggered.
Professor Kirkup moved to dispelling the “alternative facts” of the opposition to Bill C-16. As noted above, federal human rights act provisions do not apply to universities. The criminal provisions also will not significantly alter what has already been happening across Canada for years.
Opponents of Bill C-16 who advocate that we need to dismantle human rights code provisions because freedom of expression will be restricted have not adequately considered the competing rights claims here. Human rights codes protect trans-people from being fired from jobs, denied housing, and refused basic services for being transgender. Before taking a strong stance, consider the significant harm that could befall a vulnerable group as compared to a privileged one.
As a final note in his presentation, Professor Kirkup soberly advised not to imagine Bill C-16 will be the panacea that substantially improves the lives of trans-people. It may be a bit of a wet blanket, but changing what the law says about a particular community of people is unlikely to substantially ameliorate the material quality of their lives. The issue is that the proposed law is only targeting the “few bad apples”, not the systemic basis of discrimination. Continuing to mobilize and work to protect the rights of trans-individuals and reaffirm the value their lives hold is key to continuing human rights progression.
In the question period of the evening, students asked how to respond to someone who is an opponent to the Bill, or feels that the Bill creates “forced” speech. Professor Kirkup answered by stating that the Bill does not create forced speech because a person can avoid using pronouns altogether. He also pointed out that this isn’t the first time compelled speech has been legislated (the citizenship oath, bilingual packaging, and cigarette carton labeling were a few examples).
Lastly, framing this as a freedom of expression issue may simply be an off-shoot of the previous security fears of washroom use by trans-people. Professor Kirkup suggested that there may be a clash of world views underlying a person’s opposition to Bill C-16. Performance of gender is not what is was 50 years ago and some people have a hard time with these developments.
Ultimately, Bill C-16 is NBD. Professor Kirkup is part of the NBD campaign, one that is framing the Bill as “no big deal”. And truly, it isn’t a big deal at all. If you use the wrong pronoun and someone is hurt, take them aside and apologize, and ask how you can address them correctly in the future. What this all boils down to is simply respecting another human’s dignity.
Liz Guilbault (1L) is a Staff Writer for Juris Diction.