Brenda Cossman, Gender Identity, Gender Pronouns, and Freedom of Expression (2018)

Gender identity, gender pronouns, and freedom of expression:
Bill C-16 and the traction of specious legal claims
Brenda Cossman
University of Toronto Law Journal, Volume 68, Number 1, Winter 2018,

pp. 37-79 (Article)
Published by University of Toronto Press
For additional information about this article

https://muse.jhu.edu/article/684530
[ Access provided at 4 Sep 2022 20:18 GMT from York Univ. Libraries (+1 other institution account) ]
Brenda Cossman* GENDER IDENTITY, GENDER PRONOUNS,
AND FREEDOM OF EXPRESSION:
BILL C-16 AND THE TRACTION OF SPECIOUS
LEGAL CLAIMS†
Bill C-16, An Act to Amend the Canadian Human Rights Code and the
Criminal Code was a government bill intended to provide equal protection of the
law to trans and gender non-binary Canadians. It protects individuals from discrimi-
nation within the sphere of federal jurisdiction, as well as protecting against hate pro-
paganda and hate crimes, on the basis of gender identity and gender expression. The
opposition to previous legislative attempts to protect trans rights focused on questions
of sex-segregated spaces such as public bathrooms. In the course of the debate over Bill
C-16, however, a new discourse of opposition emerged: Bill C-16 was said to be a fun-
damental threat to freedom of expression. This article argues that this claim lacks
validity, yet it gained remarkable traction. The article traces the shifting opposition
discourse and argues that freedom of expression provided a new and legitimizing dis-
course for long-standing conservative opposition to trans rights. Finally, it seeks to
explain the traction of the specious legal claims, contextualizing them within existing
public discourses of political correctness and freedom of expression under attack.
Keywords: freedom of expression, gender expression, gender identity,

trans rights
Bill C-16, An Act to Amend the Canadian Human Rights Code and the Criminal
Code, was a government bill intended to provide equal protection of the law
to trans and gender non-binary individuals.1 It protects people from dis-
crimination within the sphere of federal jurisdiction and protects against
hate propaganda and hate crimes on the basis of gender identity or expres-
sion. The bill was introduced in the House of Commons on 17 May 2016 by
the minister of justice, the Honourable Jody Wilson-Raybould. For many, it
was a long overdue piece of legislation. A similar bill, Bill 279 (a private
member’s bill), had been defeated in the Senate. Justin Trudeau had pro-
mised to introduce legislation during the election, and a commitment to
protecting trans rights was part of the minister of justice’s mandate letter
following the election. There was little question that some Canadians would
* FRSC, Professor of Law, University of Toronto, Toronto, Canada

† With thanks to Maryam Shahid for excellent research assistance and to Kyle Kirkup and
Ido Katri for comments on earlier versions.
1 See Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code, 1st
Sess, 42nd Parl, 2016 (assented to 19 June 2017), SC 2017, c 13 [Act to Amend CHRA].
(Winter 2018) 68 UTLJ © UNIVERSITY OF TORONTO PRESS DOI: 10.3138/utlj.2017-0073

38 UNIVERSITY OF TORONTO LAW JOURNAL
oppose these protections; the pervasive nature of discrimination against

trans and gender non-binary Canadians is the very reason that the legisla-
tion was needed. In the past, opposition was articulated in transphobic
discourse, casting trans and gender non-binary individuals as being un-
worthy of equal protection of the law. The opposition to Bill C-279 often
swirled around the questions of bathroom access, with opponents seeking
to create broader social anxiety about the safety of cisgender women in sex-
segregated public bathrooms. But, in the course of the debate over Bill
C-16, a new discourse of opposition emerged. Bill C-16 was said to be a fun-
damental threat to freedom of expression. Beginning with the social media
musings of Jordan Peterson, a clinical psychology professor from the Uni-
versity of Toronto, the claim that Bill C-16 was an unprecedented threat to
freedom of expression in Canada gained international traction and became
the major obstacle confronting the bill. This article explores this claim, ar-
guing that the claim lacked validity but that it gained remarkable traction
nevertheless. It traces the shift in parliamentary debates and argues that
the discourse of freedom of expression provided a new and legitimizing
discourse for long-standing conservative opposition to trans rights. It inter-
rogates the traction of the specious legal claims, arguing that existing pub-
lic discourses of political correctness and freedom of expression under
attack provided a fertile terrain for these claims.
I Protecting trans legal rights in Canada
Bill C-16 added the words ‘gender identity or expression’ to the Cana-
dian Human Rights Act (CHRA).2 The amendment prevented the federal
government and businesses within federal jurisdiction – such as banks
and airlines – from discriminating on the basis of gender identity and
gender expression. The federal government was late to this game – most
of the provinces and territories had already included gender identity
and gender expression in their provincial human rights codes. In 2002,
the Northwest Territories was the first government in Canada to expli-
citly prohibit discrimination against trans people by including gender
identity in its Human Rights Act. In 2012, Manitoba added gender identity
to their human rights legislation. In that same year, Ontario3 and Nova
Scotia added both gender identity and gender expression to their
human rights laws. Prince Edward Island as well as Newfoundland and
2 RSC 1985, c H-6 [CHRA].

3 Bill 33, Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender
Identity or Gender Expression), 2012, 1st Sess, 40th Leg, Ontario, 2012 (assented to 19 June
2012), SO 2012, c 7.

GENDER IDENTITY, GENDER PRONOUNS, AND FREEDOM OF EXPRESSION 39
Labrador followed suit in 2013. In 2014, Saskatchewan made provisions

for gender identity, and, in 2015, Alberta joined the club, adding both
gender identity and expression to its Human Rights Act.4 The other five
provinces and territories – British Columbia, Quebec, New Brunswick,
Nunavut Territory, and the Yukon – had implicit protection, having in-
terpreted their human rights codes as including gender variance under
existing prohibited grounds. Each of these provinces and territories has
since moved to explicitly protect gender identity in their human rights
codes.5 In other words, virtually every provincial and territorial jurisdic-
tion in Canada provides human rights protections for trans people. The
federal government has been the outlier.
The absence of federal protection had not been for want of trying by
many members of parliament (MPs). There is a decade-long history of
private member’s bills seeking to provide trans rights at the federal level.
MP Bill Siksay introduced a bill dealing with trans rights in the House of
Commons in 2005 and then again in 2009. His private member’s bill, Bill
C-389, was passed by the House of Commons in February 2011. But, in
4 Alberta Human Rights Act, RSA 2000, c A-25.5, ss 3–9 [Alberta HRA]; Saskatchewan
Human Rights Code, SS 1979, c S-24.1, s 2(1)(m.01)(xv); Human Rights Code, CCSM
c H-175, s 9(2)(g); Human Rights Code, RSO 1990, c H.19, ss 1, 2(1), 2(2), 3, 5(1),
5(2), 6, 7(1), 7(2); Human Rights Act, RSNS 1989, c 214, s 5(1)(na), 5(1)(nb); Human
Rights Act, 2010, SNL 2010, c H-13.1, s 9(1); Human Rights Act, RSPEI 1988 c H-12, s 1
(d); Human Rights Act, SNWT 2002, c 18, s 5(1) [NWT HRA].
5 All provinces and territories now provide this human rights protection. Bill 27, Human
Rights Code Amendment Act, 2016, 5th Sess, 40th Leg, British Columbia, 2016 (assented
to 28 July 2016), SBC 2016, c 26; Jeremy Hainsworth, ‘BC Passes Trans Rights in One
Sitting,’ Xtra (26 July 2016), online: Pink Triangle Press <https://www.dailyxtra.com/
bc-passes-trans-rights-in-one-sitting-71571>; Bill 51, An Act to Amend the Human Rights
Act, 3rd Sess, 58th Leg, New Brunswick, 2017 (assented to 5 May 2017); New Bruns-
wick Human Rights Commission, ‘Human Rights Act Has Been Modernized,’ New
Brunswick Human Rights Commission (5 May 2017), online: Government of New Bruns-
wick <http://www2.gnb.ca/content/gnb/en/departments/nbhrc/news/news_
release.2017.05.0624.html>; Bill 103, An Act to Strengthen the Fight against Transphobia
and Improve the Situation of Transgender Minors in Particular, 1st Sess, 41 Leg, Quebec,
2016 (assented to 10 June 2016), SQ 2016, c 19; Ryan Hicks, ‘Quebec Tables Bill to
Help Transgender Teens Change Their Name, Gender Designation,’ CBC News (31
May 2016), online: CBC/Radio-Canada <http://www.cbc.ca/news/canada/
montreal/quebec-transgender-rights-minor-youths-1.3609154>; Bill 31, An Act to
Amend the Human Rights Act, 3rd Sess, 4th Leg, Nunavut, 2017 (second reading
8 November 2016); Consolidation of Human Rights Act, SNu 2003, c 12; Joshua Ostroff,
‘Nunavut Protects Transgender Rights in Unanimous Vote,’ Huffington Post (15 March
2017), online: TheHuffingtonPost.com, Inc. <http://www.huffingtonpost.ca/2017/
03/15/nunavut-transgender-rights_n_15386394.html>. The Yukon was the final juris-
diction to pass trans rights protections, which passed contemporaneously with the fed-
eral bill. Rob Salerno, ‘Yukon Passes Trans-Rights Bill,’ Xtra (14 June 2017), online:
Pink Triangle Press <https://www.dailyxtra.com/yukon-passes-trans-rights-bill-73680>.

what would emerge as a pattern in the Senate, it died on the order

paper without coming to a vote. In September 2011, MP Randall Garri-
son introduced his private member’s bill, Bill C-279, in the House of
Commons, which would prohibit discrimination on the basis of gender
identity and gender expression. The bill was amended by adding a defi-
nition clause for ‘gender identity’ and by removing the term ‘gender
expression.’6 It was adopted by the House of Commons on 20 March
2013 by a vote of 149 to 137, with Liberal, New Democrat, and some Con-
servative MP support. However, this bill died twice on the order paper in
the Senate before being put to a vote: first upon the prorogation of the
first session and then the dissolution of the second session of the forty-
first Parliament.
The bill had moved through the Senate’s first and second reading and
the committee stage. However, at the committee stage, Conservative se-
nators, led by Senator Don Plett, added an amendment that would have
had the effect of allowing discrimination against trans individuals in the
use of locker room and washroom facilities.7 The bill never came to a
vote and died on the order paper when the forty-second Parliament
ended in August 2015. Keeping the pressure on, Randall Garrison rein-
troduced the original text of Bill C-279 as Bill C-204, An Act to Amend the
Canadian Human Rights Act and the Criminal Code (gender identity and
gender expression) on 9 December 2015, during the first session of the
forty-second Parliament. This version of the bill did not include a defini-
tion clause, and it included both ‘gender identity’ and ‘gender expres-
sion.’ Finally, in May 2016, Bill C-16, the government-sponsored bill, was
introduced into the House of Commons, effectively displacing the pri-
vate member’s bill. Bill C-16 was modelled directly on the private mem-
ber’s bill predecessors. Bill C-16 amended the CHRA. It added the
prohibition of discrimination on the basis of ‘gender identity and gender
expression’ to the purpose of the CHRA, contained in section 2.8 It also
6 See Bill C-279, An Act to Amend the Canadian Human Rights Act and the Criminal Code
(Gender Identity), 2nd Sess, 41st Parl, 2013–15 (considered committee report (Senate)
as of 9 June 2015). Clause 1 of Bill C-279 would have added the following definition as
section 2(2) of the CHRA: ‘In this section, “gender identity” means, in respect of an
individual, the individual’s deeply felt internal and individual experience of gender,
which may or may not correspond with the sex that the individual was assigned at
birth.’
7 Canada, Standing Senate Committee on Legal and Constitutional Affairs, ‘Twenty-
Fourth Report’ (26 February 2015), online: Parliament of Canada <https://sencanada.
ca/Content/SEN/Committee/412/lcjc/rep/rep24feb15-e.htm> [Standing Senate Com-
mittee, ‘Twenty-Fourth Report’].
8 See Act to Amend CHRA, supra note 1: ‘1 Section 2 of the Canadian Human Rights Act is
replaced by the following: Purpose 2 The purpose of this Act is to extend the laws in
Canada to give effect, within the purview of matters coming within the legislative

added ‘gender identity or expression’ to the list of prohibited grounds

of discrimination contained in section 3(1) of the CHRA.9
Bill C-16 also made two amendments to the Criminal Code.10 First, it
added the words ‘gender identity or expression’ to section 318(4) of the
Code, which defines an identifiable group for the purposes of advocat-
ing genocide and promoting hatred under sections 318 and 319. Identi-
fiable group means any section of the public distinguished by colour,
race, religion, national or ethnic origin, age, sex, sexual orientation, or
mental or physical disability, and, after Bill C-16, also includes gender
identity or expression.11 Section 318 makes it an offence to advocate or
promote genocide and defines genocide as ‘(a) killing members of the
group; or (b) deliberately inflicting on the group conditions of life calcu-
lated to bring about its physical destruction.’ Section 319(1) made it a
criminal offence to incite hatred against any identifiable group where
this is likely to result in a breach of the peace. Section 319(2) made it an
offence to communicate, except in private conversation, statements that
wilfully promote hatred against an identifiable group, whether by tele-
phone, broadcasting or other audible or visible means. Prosecutions
under sections 318 and 319(2) require the consent of the provincial
Attorney General.
Second, Bill C-16 added ‘gender identity and expression’ to section
718.2(a)(i) of the Criminal Code dealing with sentencing for hate crimes.
The provision allowed evidence that an offence is motivated by bias, preju-
dice, or hate to be taken into account by courts in sentencing. The list
authority of Parliament, to the principle that all individuals should have an opportu-
nity equal with other individuals to make for themselves the lives that they are able
and wish to have and to have their needs accommodated, consistent with their duties
and obligations as members of society, without being hindered in or prevented from
doing so by discriminatory practices based on race, national or ethnic origin, colour,
religion, age, sex, sexual orientation, gender identity or expression, marital status,
family status, disability or conviction for an offence for which a pardon has been
granted or in respect of which a record suspension has been ordered’ [emphasis
added].
9 Ibid: ‘2 Subsection 3(1) of the Act is replaced by the following: Prohibited grounds of
discrimination 3(1) For all purposes of this Act, the prohibited grounds of discrimina-
tion are race, national or ethnic origin, colour, religion, age, sex, sexual orientation,
gender identity or expression, marital status, family status, disability and conviction for
an offence for which a pardon has been granted or in respect of which a record sus-
pension has been ordered’ [emphasis added].
10 RSC 1985, c C-46.
11 Act to Amend CHRA, supra note 1: ‘3 Subsection 318(4) of the Criminal Code is replaced
by the following: Definition of identifiable group (4) In this section, identifiable group
means any section of the public distinguished by colour, race, religion, national or
ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or
physical disability’ [emphasis added].

already includes ‘race, national or ethnic origin, language, colour, religion,

sex, age, mental or physical disability, sexual orientation or any other simi-
lar factor.’ After Bill C-16 was passed, evidence that an offence is motivated
by hatred, bias, prejudice, or hatred on the basis of gender identity or
expression would also be able to be taken into account in sentencing.
Bill C-16 passed the House of Commons on 18 November 2016 and
the Senate on 15 June 2017. It received royal assent on 19 June 2017.
But, along the way, Bill C-16 became a lightning rod of controversy. Con-
servatives, particularly those in the Senate, opposed the proposed law,
much as they had done with the previous private member’s bills. This
time, however, the opposition was framed largely in a new discourse –
that of freedom of expression.
II The freedom of expression opposition
Social conservatives have long opposed the protection of trans rights

and the prohibition of discrimination on the basis of gender identity
and gender expression. Debates in the House of Commons and the Sen-
ate on the previous bills, particularly the various incarnations of Bill
C-279, reveal a concerted effort to oppose trans rights through a range
of pathologizing discourses. One of the most common themes was to
cast the bill, in particular, and the protection of trans rights, more gener-
ally, as a serious threat to the safety of women in women-only spaces,
especially public bathrooms. Allyson Lunny has documented the opposi-
tional discourse to both Bill 389 and Bill C-279, as focusing on the issues
of redundancy, ambiguity, and, in particular, bathrooms:
The most polemical objection to the proposed legislation took the form of an
odd fear-mongering argument, one that was propagated by social conservatives
and endorsed by Conservative party MP Rob Anders. . . . that if ‘gender identity’
and ‘gender expression’ were added to the CHRA and to hate crime protections
under the Criminal Code, men would be at legal liberty to disguise themselves
in women’s clothing and enter women’s public washrooms where they would
sexually assault women and girls.’12
It was a threat repeated many times and, at its most extreme, cast trans
people as pedophiles. Senator Plett, a leading opponent of trans rights,
did not mince words: ‘The pedophiles, the Chris Hambrooks of the
12 Allyson M Lunny, Debating Hate Crime: Language, Legislatures, and the Law in Canada
(Vancouver: UBC Press, 2017) at 119 [Lunny, Debating Hate Crime]. Lunny explores
the ways in which this rhetoric appealed to transphobic discourses of disgust and dis-
guise, creating the trans subject as abject.

world, can use this law to their advantage.’13 It was this concern about
the threat to women and children that led to the proposed amendment,
by Senator Plett, to exempt same-sex facilities from the application of
Bill C-279.14
The initial debates in the House of Commons on Bill C-16 seemed to
mimic this earlier discourse of the threat to women within sex-segregated
spaces, alongside references to the vagueness of the terms, the redun-
dancy of the protections, and the freedom of religion of those who oppose
trans rights. Then, along came Peterson. In a YouTube video released on
27 September 2016 entitled Professor against Political Correctness, Part 1,
Peterson launched his attack on Bill C-16. While criticizing ‘political cor-
rectness’ on campus, the focus of his ire was gender-neutral pronouns,
such as the singular ‘they,’ and the extent to which Bill C-16 would man-
date their usage. Through a literal clause-by-clause reading of the provi-
sions of the proposed bill, in the absence of any legal analysis or
background, he claimed that the bill was ‘dangerous,’ ‘messy, ‘poorly
written,’ and ‘rubbish.’ He claimed that the new law would make pronoun
misuse subject to hate speech, that he would refuse to use them, and that
he would be at risk of being prosecuted for expressing his critique of
the law.
In the media storm that ensued, Peterson intensified his claims about
the potential criminality of the misuse of gender pronouns and the
extent to which Bill C-16 represented an unprecedented violation of
freedom of expression in Canada. In an interview with the Toronto Sun,
he stated: ‘These laws are the first laws that I’ve seen that require people
under the threat of legal punishment to employ certain words, to speak
a certain way, instead of merely limiting what they’re allowed to say.’15 In
a commentary published in the Toronto Sun, Peterson stated that ‘Bill
13 Interview of Senator Don Plett by Justin Ling (23 June 2014), reprinted in Vice, online:
Vice Media <https://www.vice.com/en_ca/article/3b7pkw/trans-rights-bill-c-29-
senate>. Plett stated his opposition in terms of men abusing women and girls in wash-
rooms repeatedly. See also Josh Wingrove, ‘Transgender Rights Bill Opposed by
Harper May Be Sidelined in Senate,’ Globe and Mail (29 September 2014), online:
Globe and Mail <https://www.theglobeandmail.com/news/politics/transgender-bill-
may-face-further-delays-in-the-senate/article20822849/>.
14 Janyce McGregor, ‘Transgender Rights Bill Gutted by “Transphobic” Senate Amend-
ment: Conservative Senator’s Amendment Exempts Sex-Specific Locations Like Wash-
rooms, Crisis Centres, Prisons,’ CBC News (27 February 2015), online: CBC/Radio-
Canada <http://www.cbc.ca/news/politics/transgender-rights-bill-gutted-by-
transphobic-senate-amendment-1.2975024>. This amendment would have impacted a
relatively small number of facilities since most washrooms would have already been
covered by provincial and territorial law.
15 Quoted in Antonella Artuso, ‘U of T Prof Told to Use Gender Pronouns Students
Want,’ Toronto Sun (19 October 2016), online: Postmedia Network <http://www.

C-16 and its ilk,’ which includes the Ontario Human Rights Code, ‘con-
stitute an entirely new form of legislation.’ He argued that, unlike the
old laws that restricted what we can say, ‘[f]or the first time . . . the govern-
ment . . . has decided what we must say, instead of what we can’t say . . . I
believe it constitutes a serious restriction of free speech.’16
In a panel discussion on The Agenda on TV Ontario, Peterson stated
that the refusal to use a person’s preferred pronoun would be a form of
hate speech: ‘That’s why I made the video. I said that we were in danger
of placing the refusal to use certain kinds of language into the same cate-
gory as Holocaust denial.’17 He reiterated his intention to not use the
pronouns: ‘If they fine me, I won’t pay it. If they put me in jail, I’ll go on
a hunger strike. I’m not doing this. And that’s that. I’m not using the
words that other people require me to use. Especially if they’re made up
by radical left-wing ideologues.’18 In an article that he wrote for The Hill,
Peterson states:
Bill C-16, and its legislative sisters, are particularly insidious constructions. Free
speech is so fundamentally important that restricting it in any manner carries
serious risk. Nonetheless, we shouldn’t be allowed to yell ‘fire’ in a crowded the-
atre. Sensible people can also debate the control of hatred (although hate
speech laws present a significant danger themselves).
There is, however, a crucial difference between laws that stop people from say-
ing arguably dangerous words and laws that mandate the use of politically-
approved words and phrases. We have never had laws of the latter sort before,
not in our countries. This is no time to start.19
Mainstream and social media erupted with articles and commentary on
questions of Bill C-16, freedom of expression, and pronoun use.20 While
torontosun.com/2016/10/19/u-of-t-tells-outspoken-prof-to-stop-making-public-
statements>.
16 Jordan B Peterson, ‘Why I Won’t Use “Preferred” Pronouns – and Why You Shouldn’t
Either,’ Toronto Sun (3 November 2016).
17 ‘Genders, Rights and Freedom of Speech,’ The Agenda with Steve Paikin (26 October
2016), online: TV Ontario <http://tvo.org/video/programs/the-agenda-with-steve-
paikin/genders-rights-and-freedom-of-speech>.
18 Ibid.
19 Jordan B Peterson, ‘Canadian Gender-Neutral Pronoun Bill Is a Warning for Ameri-
cans,’ The Hill (18 October 2016), online: Capitol Hill Publising <http://thehill.com/
blogs/pundits-blog/civil-rights/301661-this-canadian-prof-defied-sjw-on-gender-
pronouns-and-has-a>.
20 See, as a starting point, Interview of Jordan Peterson by Carol Off (30 September
2016), online: CBC/Radio-Canada <http://www.cbc.ca/radio/asithappens/as-it-
happens-friday-edition-1.3786140/i-m-not-a-bigot-meet-the-u-of-t-prof-who-refuses-to-
use-genderless-pronouns-1.3786144>.

some were sceptical and critical of Peterson’s claims,21 his critique re-
leased a maelstrom, denouncing political correctness and the state of
freedom of expression in Canada, in general, and on campuses, in par-
ticular. The ensuing debate held at the University of Toronto provided
another forum for Peterson to amplify his views, claiming that Bill C-16
represented a dangerous and unprecedented violation of freedom of
expression, and, once again, he denounced the very idea of gender-
neutral pronouns and gender non-conforming individuals along with it.
Much of the media coverage extolled his position.22
Peterson’s intervention was game changing. As I discuss further below,
opponents to Bill C-16 quickly jumped onto the freedom-of-expression
bandwagon. Others who had paid little attention to Bill C-16, rather like
Peterson himself, now saw in it a new foil for their arguments around
political correctness and freedom of expression. Those who supported
Bill C-16 were now forced to engage with the freedom-of-expression
claims and defend the bill from Peterson’s allegations.
III The rebuttal: neither criminalizing pronoun misuse nor unconstitutional
Many lawyers, law professors, and activists were quick to denounce Peter-
son’s claims as utterly unfounded.23 Even the Canadian Bar Association
21 Tamara Khandaker, ‘No, the Trans Bill Does Not Criminalize Free Speech,’ Vice (24
October 2016), online: Vice Media <https://www.vice.com/en_ca/article/no-the-
trans-rights-bill-doesnt-criminalize-free-speech>; Jack Newsham, ‘Fact Check: No, You
Won’t Be Jailed for Using the Wrong Pronoun,’ CANADALAND (7 October 2016),
online: CANADALAND <http://www.canadalandshow.com/no-wont-jailed-using-
wrong-pronoun/>; Lisa Cumming, ‘Are Jordan Peterson’s Claims about Bill C-16 Cor-
rect?’ The Torontoist (19 December 2016), online: Ink Truck Media <http://torontoist.
com/2016/12/are-jordan-petersons-claims-about-bill-c-16-correct/>.
22 E.g. Rosi DiManno, for example, agreed that ‘[i]t is fundamentalist and totalitarian
intrusion into people’s lives.’ Rosi DiManno, ‘Prof’s Fear of Pronoun Punishment Is
All Too Plausible,’ Toronto Star (20 November 2016), online: Toronto Star Newspapers
Ltd. <https://www.thestar.com/news/gta/2016/11/20/profs-fear-of-pronoun-
punishment-is-all-too-plausible-dimanno.html>; Christie Blatchford, ‘If Gender Iden-
tity Debate at U Of T Was about Free Speech, Then the Battle Is Truly Lost,’ National
Post (22 November 2016), online: PostMedia <http://news.nationalpost.com/full-
comment/christie-blatchford-if-gender-identity-debate-at-u-of-t-was-about-free-speech-
then-the-battle-is-truly-lost>.
23 David Schneiderman, ‘On Yelling Fire Falsely in a Crowded Lecture Hall,’ Centre for
Free Expression Blog (7 November 2016), online: Ryerson University <https://www.cfe.
ryerson.ca/blog/2016/11/yelling-fire-falsely-crowded-lecture-hall>; Kyle Kirkup, ‘Bill
C-16 Will Not Erode Freedom of Speech,’ Inter Alia (1 March 2017), online: Inter Alia
<http://inter-alia.ca/2017/03/01/410/>; Brenda Cossman ‘Bill C-16 No Its Not
about Criminalizing Pronoun Misuse,’ SexText: The SDS Blog (Mark S Bonham Centre
for Sexual Diversity Studies), online: Mark S Donham Centre for Diversity Studies,

sought to refute the claim that Bill C-16 violated freedom of expression:
‘Recently, the debate has turned to whether the amendments will force in-
dividuals to embrace concepts, even use pronouns, which they find objec-
tionable. This is a misunderstanding of human rights and hate crimes
legislation.’24 The legal arguments are not particularly complex. First,
there is nothing in Bill C-16 that would risk criminalizing the misuse of
gender pronouns. Second, to the extent that Bill C-16 might protect trans
and gender non-binary individuals from harassment through the misuse
of pronouns, it would not be a violation of freedom of expression.
A BILL C-16 DOES NOT CRIMINALIZE THE MISUSE OF PRONOUNS

As outlined above, Bill C-16 adds ‘gender identity or expression’ to the
definition of a social group in the Criminal Code for the purposes of ad-
vocating genocide, public incitement of hatred, and wilful promotion of
hatred. It also adds gender identity and gender expression to the senten-
cing provisions for hate crimes. Neither of these amendments crimina-
lize the misuse of gender pronouns.
1 hate crimes
Section 718(2)(a)(i) allows evidence that an offence that was motivated
by bias, prejudice, or hatred to be taken into account in sentencing. As a
result of Bill C-16, hatred on the basis of gender identity or expression
can now be taken into account. It is important to emphasize that section
718.2(a)(i) does not create a new offence. Rather, it means that the com-
mission of an existing offence in the Criminal Code, such as murder,
assault, or sexual assault, could be given a harsher sentence if it was moti-
vated by hatred. There is nothing in this provision that would criminalize
the misuse of pronouns. The only way that pronoun misuse could be rel-
evant here would be if an accused was shouting incorrect gender pro-
nouns while committing an offence under the Criminal Code. In other
words, if an accused was uttering the wrong pronouns while assaulting,
sexually assaulting, or murdering the victim, the use of those words
University of Toronto <http://sds.utoronto.ca/blog/bill-c-16-no-its-not-about-

criminalizing-pronoun-misuse/>; Jake Pyne, ‘Gender “Pronoun War” Is about Free-
dom for Sure, But Not Free Speech,’ Now (22 November 2016), online: Now Toronto
<https://nowtoronto.com/news/gender-pronoun-war-free-speech/>; Anna Sibal, ‘De-
coding Bill C-16: Does It Threaten Canadians’ Freedoms?’ McGill International Review
(12 December 2016), online: McGill International Review <http://mironline.ca/
decoding-bill-c-16-threaten-canadians-freedoms/>.
24 Letter from René J Basque (on behalf of the Canadian Bar Association (CBA)) to the
Honourable Bob Runciman (Chair, Standing Senate Committee on Legal and Consti-
tutional Affairs) (10 May 2017), online: CBA <http://www.cba.org/CMSPages/
GetFile.aspx?guid=be34d5a4-8850-40a0-beea-432eeb762d7f>.

might be evidence that the crime was motivated by bias, prejudice, or

hatred and, accordingly, could be taken into account in sentencing.
There is nothing in the provision that makes gender pronoun misuse
criminally liable in its own right.
2 hate speech
The hate speech provisions of the Criminal Code consist of three differ-
ent provisions. Section 318 prohibits advocating or promoting genocide.
It carefully defines genocide as ‘(a) killing members of the group; or (b)
deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction.’ In other words, it involves advocating the
death and physical destruction of a group of people. Advocating geno-
cide against trans and gender non-binary individuals would now be cov-
ered under this provision of the Criminal Code. However, refusing to
use a person’s pronoun is not advocating genocide. It is possible that the
actual advocating of genocide against trans and gender non-binary indi-
viduals could be accompanied by the misuse of pronouns. But the mis-
use of pronouns is not the legal equivalent of advocating the death and
destruction of trans and gender non-binary individuals and is in no way
actionable under this provision.
Section 319(1) prohibits the public incitement of hatred. It requires
that statements be communicated in a public place and that the incite-
ment is likely to lead to a breach of the peace. The threshold, as inter-
preted by the Supreme Court of Canada, is high. The breach of the
peace requires a threat of violence. In R v Kerr, the Court stated that
‘there is a breach of the peace whenever harm is actually done or is likely
to be done to a person or in his presence to his property or a person is
in fear of being so harmed through an assault, an affray, a riot, unlawful
assembly or other disturbance.’25 As Justice David Doherty has stated:
A breach of the peace does not include any and all conduct which right thinking
members of the community would regard as offensive, disturbing, or even
vaguely threatening. A breach of the peace contemplates an act or actions which result
in actual or threatened harm to someone.26
The misuse of gender pronouns, without more, cannot meet this high
threshold. Offensive or disturbing conduct is not enough. The misuse of
gender pronouns would have to be accompanied by additional conduct
25 R v Kerr, 2004 SCC 44, [2004] 2 SCR 371 at para 91, citing R v Howell (1981), [1982]
QB 416 (Eng CA) at 426–7.
26 Brown v Durham Regional Police Force (1998), 43 OR (3d) 223 (Ont CA) at para 73, 167
DLR (4th) 672 [emphasis added], a leading authority on common law police powers
associated with ‘breach of the peace.’

that carried a probable risk of violence toward a trans or gender non-

binary individual.
Section 319(2) prohibiting the wilful promotion of hatred has been in-
terpreted by the Supreme Court of Canada as only applying to the most
extreme forms of speech. In R v Keegstra, Chief Justice Brian Dickson
held that ‘the term “hatred” connotes emotion of an intense and
extreme nature that is clearly associated with vilification and detesta-
tion.’ Further, the hate speech must be wilful – that is, the promotion of
hatred must be ‘intended or foreseen as substantially clear.’27 In subse-
quent cases, the Court has reaffirmed the high threshold of hatred. Most
recently, in Whatcott v Saskatchewan Human Rights Tribunal, the Court
again emphasized that only the most extreme forms of speech are cap-
tured within the term ‘hate’:
[T]erm ‘hatred’ or ‘hatred or contempt’ is to be interpreted as being restricted
to those extreme manifestations of the emotion described by the words ‘detesta-
tion’ and ‘vilification.’ This filters out expression which, while repugnant and
offensive, does not incite the level of abhorrence, delegitimization and rejection
that risks causing discrimination or other harmful effects.28
The Court has repeatedly emphasized that ‘merely offensive or hurtful
expression’ does not meet the threshold of hatred: ‘Expression exposing
vulnerable groups to detestation and vilification goes far beyond merely
discrediting, humiliating or offending the victims.’29
Further, section 319(3) of the Human Rights Code provides a number
of defences to the charge of wilfully promoting hatred:
No person shall be convicted of an offence under subsection (2):
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an
opinion on a religious subject;
(c) if the statements were relevant to any subject of public interest, the discus-
sion of which was for the public benefit, and if on reasonable grounds he be-
lieved them to be true; or
27 According to the Court, the wilful requirement is only satisfied ‘where an accused sub-
jectively desires the promotion of hatred or foresees such a consequence as certain or
substantially certain to result from an act done in order to achieve some other pur-
pose.’ R v Keegstra, [1990] 3 SCR 697 at para 116, [1990] SCJ No 131 [Keegstra], citing
Martin JA in R v Buzzanga and Durocher (1979), 49 CCC (2d) 369 (Ont CA) with
approval.
28 Whatcott v Saskatchewan Human Rights Tribunal, 2013 SCC 11 at para 57, [2013] 1 SCR
467 [Whatcott].
29 Ibid at para 41; see also R v Taylor, 2014 SCC 50, [2014] 2 SCR 495.

(d) if, in good faith, he intended to point out, for the purpose of removal, mat-
ters producing or tending to produce feelings of hatred towards an identifiable
group in Canada.
The defences make clear that the mere discussion of controversial or
potentially offensive issues will not constitute the wilful promotion of
hatred. Finally, it is also worth nothing that prosecutions for the wilful
promotion of hate speech are relatively rare. As Richard Moon has
noted,
[r]elatively few prosecutions have been brought under section 319, and there
have been even fewer convictions. Between 1994 and 2004 there were 93 prose-
cutions under section 319. Thirty-two convictions were entered and of these 27
resulted in prison sentences and 5 in conditional sentences.30
Moon observes that it is unclear whether this low number is due to the
requirement that prosecutions under section 319(2) be approved by the
provincial Attorney General.
Contrary to the claims of the freedom-of-expression opponents, the
misuse of gender pronouns, without more, cannot meet this threshold.
The addition of gender identity and gender expression is one that en-
sures that trans and gender non-binary individuals have the same protec-
tions from hate speech as other Canadians. Being treated equally will
mean that the speech will have to rise to the level of extreme detestation
and that prosecutions will have to be approved by the Attorney General.
The misuse of gender pronouns, without more, even if intentional, does
not meet this criminal threshold.
B GENDER PRONOUNS AND THE CHRA

Bill C-16 adds the prohibition of discrimination on the basis of ‘gender
identity or expression’ to the purpose section and to the list of prohib-
ited grounds of discrimination of the Canadian Human Rights Code.
There are no specific references to gender pronouns. The question of
whether the non-discrimination requirements will include the right to
be identified by a person’s gender pronoun has arisen in reference to
Ontario’s Human Rights Code and, in particular, the Policy on Preventing
Discrimination Because of Gender Identity and Expression, which was published
30 Richard Moon, ‘Report to the Canadian Human Rights Commission Concerning Sec-
tion 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the
Internet’ (October 2008) at 15, online: Government of Canada <http://publications.
gc.ca/collections/collection_2016/ccdp-chrc/HR4-33-2008-eng.pdf> [Moon, ‘Report
to CHRC’].

by the Ontario Human Rights Commission.31 The policies of the Ontario

Human Rights Commission (OHRC) are not legally binding documents
but, rather, are intended to provide guidance in interpreting the rights
under the code and may be considered by human rights tribunals.32 Sec-
tion 7 of the policy discusses the forms of discrimination; section 7.4 spe-
cifically discusses the meaning of gender-based harassment and sexual
harassment as it may apply to gender identity and gender expression, stat-
ing that ‘gender-based harassment’ can involve:
• Derogatory language toward trans people or trans communities
• Insults, comments that ridicule, humiliate or demean people because
of their gender identity or expression
• Behaviour that ‘polices and or reinforces traditional heterosexual
gender norms’
• Refusing to refer to a person by their self-identified name and proper personal
pronoun
• Comments or conduct relating to a perception that a person is not
conforming with gender-role stereotypes
• Jokes related to a person’s gender identity or expression including
those circulated in writing or by email or social media
• Spreading rumours about a person’s gender identity or expression
including through the Internet
• ‘Outing’ or threatening to ‘out’ someone as trans
• Intrusive comments, questions or insults about a person’s body, physi-
cal characteristics, gender-related medical procedures, clothing,
mannerisms, or other forms of gender expression
• Other threats, unwelcome touching, violence and physical assault.
The policy identifies a broad range of behaviours that might involve
gender-based harassment against trans and gender non-binary individuals,
including the refusal to refer to a person by their ‘proper personal pro-
noun.’ It is this policy statement that has become the focus of controversy.
31 Ontario Human Rights Commission (OHRC), ‘Policy on Preventing Discrimination

Because of Gender Identity and Expression’ (31 January 2014) (officially released
14 April 2014), online: OHRC <http://www.ohrc.on.ca/en/policy-preventing-
discrimination-because-gender-identity-and-gender-expression>.
32 The purpose of the policies is set out by the OHRC. Ibid, Appendix A: ‘The OHRC’s
policies and guidelines set standards for how individuals, employers, service providers
and policy-makers should act to comply with the Code. They are important because
they represent the OHRC’s interpretation of the Code at the time of publication.’ In
addition, the statutory framework allows the OHRC to create policies and allows the
tribunal to consider these policies in their deliberations. Human Rights Code Amend-
ment Act, 2006, SO 2006, c 30, ss 30, 45.5(1), 45.5(2), 45.6(1) (emphasis added).

Critics, as described above, claim that the law will now legally require the
use of a range of gender non-binary pronouns (ze, zher, and so on) and
that the failure to do so will result in legal liability. In the wake of the con-
troversy, the OHRC issued some clarifications on the requirements regard-
ing gender pronouns:
Refusing to refer to a trans person by their chosen name and a personal pro-
noun that matches their gender identity, or purposely misgendering, will likely
be discrimination when it takes place in a social area covered by the Code, in-
cluding employment, housing and services like education.33
The policy, as articulated by the OHRC, thus suggests that misgendering
a trans person could constitute gender harassment. However, in terms of
gender-neutral pronouns, the commission noted that ‘the law is other-
wise unsettled as to whether someone can insist on anyone gender neu-
tral pronoun in particular’: ‘The OHRC does not require any particular
gender neutral pronoun. If in doubt, ask the person how they wish to be
addressed. Use ‘they’ if you don’t know. Or simply use their name.’
While recognizing that the law remains unclear, the commission suggests
that a person could be entitled to a gender-neutral pronoun: they – in
other words, ‘he,’ ‘she,’ or ‘they.’ It does not require the plethora of
potential gender-neutral pronouns suggested by the critics. Further, it
also suggests that the problem of misgendering can be avoided alto-
gether by simply using an individual’s name.
While the law therefore remains unsettled, the failure to identify a per-
son by the personal pronoun that matches their gender identity could
be legally actionable under the Ontario Human Rights Code. Tribunals
and courts will be called upon to decide the scope and content of the
rights, but non-discrimination on the basis of gender identity and expres-
sion may be interpreted by the courts in the future to include the right
to be identified by a person’s gender pronoun, including a gender-
neutral pronoun.34 However, the critics make a number of unsustainable
claims about the potential inclusion of gender pronouns, including the
potential for imprisonment, unprecedented compelled speech, and the
violation of freedom of expression. I address each claim in turn.
33 OHRC, ‘Questions and Answers about Gender Identity and Pronouns’ (November
2016), online: OHRC <http://www.ohrc.on.ca/en/questions-and-answers-about-
gender-identity-and-pronouns>. In support, the Commission cites Dawson v Vancoun-
ver Police Board, 2015 BCHRT 54, [2015] BCWLD 3395 (where police misgendering a
trans woman was found to be discrimination).
34 It is worth noting that the same conclusion could be reached without the addition of
gender identity and gender expression in so far as courts and tribunals have inter-
preted discrimination on the basis of sex to include a prohibition on discrimination
against trans individuals.

1 imprisonment
In contrast with the claims of critics, the potential requirement to use
gender-neutral pronouns under human rights legislation does not con-
stitute the criminalization of the speech nor, realistically, the potential
for imprisonment. The remedies for human rights violations under
human rights codes include monetary damages, non-financial remedies
(for example, ceasing the discriminatory practice or reinstating a termi-
nated employee to a job) and public interest remedies (for example,
changing hiring practices or developing non-discriminatory policies and
procedures). If an individual refuses to pay the damages, the mechan-
isms of civil enforcement would come into effect. The two most common
forms of enforcing judgments are seizure and sale of assets and/or gar-
nishment of wages. Once again, imprisonment is not one of the options.
One critic of Bill C-16 has pointed out that the failure to abide by the
non-financial remedies of the Human Rights Tribunal could result in a
proceeding of contempt of court, which could in turn lead to imprison-
ment.35 According to the Statutory Powers Procedure Act, an order of a tri-
bunal, such as the Ontario Human Rights Tribunal, is treated as an
order of the Superior Court.36 The Act allows a tribunal to pursue a
breach of its orders by pursuing an order for contempt of court.37 The
penalty for contempt of court can include imprisonment.38 Similar me-
chanisms exist at the federal level as well as in other provinces.39 Lawyer
Jared Brown notes that ‘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 imprison-
ment with many as recent as 2013.’40
35 Jared Brown, ‘Bill C-16, What’s the Big Deal?’ Perspectives on Commercial Litigation: A
Brown Litigation Blog (24 December 2016), online: Litigation Guy <https://
litigationguy.wordpress.com/2016/12/24/bill-c-16-whats-the-big-deal/> [Brown, ‘Bill
C-16’]. Brown also appeared before the Senate Committee in April 2017.
36 RSO 1990, c S 22, s 19(1): ‘A certified copy of a tribunal’s decision or order in a pro-
ceeding may be filed in the Superior Court of Justice by the tribunal or by a party and
on filing shall be deemed to be an order of that court and is enforceable as such.’
37 Ibid, s 13(1): ‘Where any person without lawful excuse, . . . (c) does any other thing that
would, if the tribunal had been a court of law having power to commit for contempt,
have been contempt of that court, the tribunal may, of its own motion or on the motion
of a party to the proceeding, state a case to the Divisional Court setting out the facts and
that court may inquire into the matter and, after hearing any witnesses who may be pro-
duced against or on behalf of that person and after hearing any statement that may be
offered in defence, punish or take steps for the punishment of that person in like man-
ner as if he or she had been guilty of contempt of the court.’
38 RRO 1990, Reg 194, s 60.11.
39 See e.g. Federal Courts Rules, SOR/98–106, s 472; Alberta Rules of Court, AR 124/
2010, s 10.53(1).
40 Brown, ‘Bill C-16,’ supra note 35.

However, in the specific context of human rights tribunals and non-

monetary orders, contempt of court orders are extremely rare. Virtually
all have involved violations of the hate speech provision that are, or
were, contained within federal or provincial human rights codes (hate
speech provisions are no longer in the CHRA).41 In Canadian Human
Rights Commission v Ross,42 Canada (Human Rights Commission) v Canadian
Liberty Net,43 Canada (Human Rights) v Winnicki,44 and Warman v Tre-
maine,45 the tribunals ordered the defendants to cease the communica-
tion of the hate speech, and the defendants continued to communicate
the material. In these cases, the courts eventually found the defendants
to be in contempt of court and subject to imprisonment. So, while
Brown’s claim that contempt of court proceedings could be brought
against an individual in violation of a tribunal order for a non-financial
remedy and that proceeding could result in a jail sentence is possible,
such an outcome is extremely unlikely, all the more so in the absence of
hate speech provisions within the Canadian Human Rights Code. Even
Brown recognizes that ‘[t]he likelihood that contempt of a Tribunal
order will result in imprisonment, remains extremely low.’46
41 Bill C-304, An Act to Amend the Canadian Human Rights Act (Protecting Freedom), 1st Sess,
41st Parl, 2013 (repealing section 13 from the CHRA; assented to 26 June 2013), SC
2013, c 37 [Bill C-304].
42 Ross was found in violation of section 13 of the CHRA, supra note 2: ‘We therefore
order the Respondents to cease their discriminatory practice of using the telephone
to communicate repeatedly the subject matter which has formed the contents of the
tape-recorded messages referred to in the complaints. The defendant John Ross Tay-
lor is guilty of contempt of court and sentenced to imprisonment for a period of one
year. The execution of the sentence will be suspended and will take effect only if he
further disobeys the Order of the Canadian Human Rights Commission.’ See Canada v
Taylor, [1990] 3 SCR 892 at para 8, [1990] SCJ No 129 [Taylor].
43 [1998] 1 SCR 626, 157 DLR (4th) 385.
44 2006 FC 873 (Can LII).
45 2014 FCA 192, 244 ACWS (3d) 835. In February 2007, the Canadian Human Rights
Tribunal held that the complaint by Mr Warman against Mr Tremaine was substan-
tiated. It held that messages and material he posted on the Internet were likely to
expose persons of the Jewish faith, blacks, and other non-white minorities to hatred or
contempt. The theme of Tremaine’s messages was that Jews, blacks, and other non-
whites were destroying Canada and that they should either be deported or segregated.
They are a threat to white civilization. They were described as vermin, a disease, para-
sites, criminals, scoundrels, embezzlers, and liars. They were portrayed as dangerous
and, in some cases, intellectually inferior. Tremaine was ordered to cease publishing
material of the same type. He was also ordered to pay a penalty of $4,000. Tremaine
continued to post hate messages of the type found by the tribunal to be in violation of
section 13(1) of the CHRA. In 2012, the Federal Court found him in contempt of
court. In 2014, the Federal Court of Appeal upheld the order.
46 Brown, ‘Bill C-16,’ supra note 35.

2 unprecedented compelled speech

Critics have argued that this is the first time that the law has ever com-
pelled speech, setting out what we must say as opposed to what we can-
not say and, as such, that it constitutes a dangerous and unprecedented
violation of freedom of expression. First, it is not the case that the law
has never compelled expression. There are a number of examples of
laws that compel speech – laws that have been upheld as constitutional.
Bilingual labelling requirements on food packaging, health warnings on
cigarette packages, and the oath of allegiance to the Queen of England
that must be sworn at citizenship ceremonies have each been upheld as
constitutional speech.47 Compelled expression is simply not as foreign a
concept to the law as the critics allege.
3 violation of charter rights to freedom of expression

Finally, there is the claim that the potential requirement of using the
appropriate ‘he,’ ‘she,’ or ‘they’ pronoun is a violation of freedom of
expression as guaranteed by the Canadian Charter of Rights and Free-
doms.48 The Supreme Court of Canada has, on numerous occasions,
considered whether the restrictions on speech contained within human
rights codes are constitutional. It has repeatedly found that, while the re-
strictions constitute a violation of freedom of expression under section
2(b) of the Charter, these restrictions are a reasonable limit with the
meaning of section 1 and, therefore, are constitutional. The challenges
have repeatedly been to the hate speech provisions, once included in
the federal code but since repealed, and to several provincial codes
which contain these provisions. The Court has upheld these hate speech
provisions as constitutional – provisions that are far more restrictive on
speech than the use of pronouns.
In Canada (Human Rights Commission) v Taylor, John Ross Taylor and
the Western Guard Party challenged section 13(1) of the CHRA prohi-
biting the telephonic communication of matter that is likely to expose
persons identifiable on the basis of race and religion to hatred or con-
tempt.49 The majority of the Supreme Court of Canada held that,
although section 13 of the CHRA violated section 2(b) of the Charter –
the freedom-of-expression provision – it was a reasonable limit under
47 See Ford v Quebec, [1988] 2 SCR 712 (bilingual labeling); RJR-MacDonald v Canada,
[1995] 3 SCR 199 (on cigarette warnings); McAteer v Canada, 2014 ONCA 578 (Ont
CA; leave to appeal to Supreme Court of Canada denied, 26 February 2015). See gen-
erally Peter Hogg, Constitutional Law of Canada, 5th ed (2007) at 43-17–43-20 on forced
expression.
48 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c 11 [Charter].
49 Taylor, supra note 42.

section 1. Dickson CJ, for the majority, held that hate speech in sec-
tion 13 of the CHRA only included ‘unusually strong and deep-felt emo-
tions of detestation, calumny and vilification.’ Taylor was decided alongside
R v Keegstra, in which the Court upheld the constitutionality of the hate
speech provision – section 319(2) of the Criminal Code. According to
Dickson CJ, although the provision violated freedom of expression under
section 2(b), it was also a reasonable limit within the meaning of section 1.
The Court held that hate speech is ‘a special category of expression which
strays some distance from the spirit of section 2(b).’50
The hate speech provisions in human rights codes and the Criminal
Code are not without controversy and criticism. In a report prepared for
the Canadian Human Rights Commission, Richard Moon recommended
that section 13 of the CHRA should be repealed.51 He argued that
‘[h]ate speech should continue to be prohibited under the Criminal Code
but this prohibition should be confined to expression that advocates, justi-
fies or threatens violence.’52 In his view, censorship should be confined to
‘a narrow category of extreme expression – that which threatens, advo-
cates or justifies violence against the members of an identifiable group.’53
The Conservative government ultimately repealed section 13(1) of the
CHRA in 2013. However, hate speech laws remains in the Criminal Code
and in some provincial human rights codes.54 Many argue, alongside the
dissenting opinions of Justice Beverley McLachlin that hate speech laws
do more damage than good.55 Civil libertarians argue that the censorship
of hate speech results in an undue violation of freedom of expression.
While the objective of the laws may be laudable, their impact is potentially
more harmful. Hate speech provisions enable state officials to make arbi-
trary and subjective decisions, potentially resulting in the censorship of
legitimate, but controversial, political speech. Hate speech prosecutions
bring greater public attention to the speech and risks turning the accused
into a cause célèbre and martyr for freedom of expression. Civil libertarians
50 Keegstra, supra note 27.

51 Moon, ‘Report to CHRC,’ supra note 30.
52 Ibid.
53 Ibid.
54 Similar prohibitions on discriminatory speech exist in Alberta and British Columbia.
Alberta HRA, supra note 4, s 3; Human Rights Code, RSBC 1996, c 210, s 7. A narrower
prohibition exists in the Northwest Territories. NWT HRA, supra note 4, s 14. The
CHRA, supra note 2, s 13 was amended on 26 June 2013, with the rescinding of the pro-
hibition against the publication of hate speech. See Bill C-304, supra note 41. The other
seven provinces and territories do not have hate speech provisions in their human rights
legislation.
55 See e.g. Richard Moon, The Constitutional Protection of Freedom of Expression (Toronto:
University of Toronto Press, 2000).

continue to argue against the efficacy, vagueness, chilling effect, and poten-
tial over-inclusiveness of hate speech laws.
Yet the Supreme Court of Canada has consistently upheld these laws.
The Court recently revisited the question of the constitutionality of the
hate speech provisions in human rights codes. In Whatcott, the Court
unanimously upheld the hate speech provisions contained in Saskatche-
wan’s Human Rights Code.56
It would be within the scope of government to amend or repeal hate
speech laws. However, unless governments do so, these laws have been
held to be constitutional by the Supreme Court of Canada. In terms of
Bill C-16, it is also important to emphasize that the CHRA no longer con-
tains the hate speech provisions. Bill C-16 only amends the prohibited
grounds of discrimination under the CHRA. Given that the Court was
prepared to uphold far more restrictive provisions within human rights
codes, it is entirely reasonable to imagine that the Court will similarly
uphold the amendments introduced by Bill C-16. Similarly, while Bill
C-16 adds gender identity or expression to the hate speech provisions of
the Criminal Code, these provisions have also been upheld by the Court.
All Bill C-16 does is add the protections already contained in Canadian
law to include trans and non-binary individuals. Indeed, there is an argu-
ment that a failure to do so would itself be unconstitutional.57
In terms of the potentially compelled pronoun usage from Canadian
human rights codes, it will be remain up to the courts and, ultimately,
the Supreme Court of Canada to decide the balance between equality
and expression rights. There is nothing in the CHRA that requires spe-
cific pronoun usage. If tribunals and courts decide that the prohibition
of discrimination and harassment on the basis of gender identity and
gender expression does include the right to the appropriate pronoun, it
will be these tribunals and courts that will balance this right with the
competing right to freedom of expression. If and when it is called upon,
the Supreme Court of Canada will articulate the factors and context in
which such pronoun misusage will constitute a violation of the CHRA.
Much like the Court’s statement in Reference re Same-Sex Marriage, the
particular conflicts between competing rights are to be resolved on a
case-by-case basis as the conflicts arise.58 There is no reason to believe
that any potential conflict between the equality right of non-discrimination
on the basis of gender identity and gender expression and the right to
56 Whatcott, supra note 28.

57 See Vriend v Alberta, [1998] 1 SCR 493, [1998] SCJ No 29, where the Supreme Court
of Canada held that the exclusion of ‘sexual orientation’ from the Alberta HRA, supra
note 4, violated section 15 of the Charter.
58 Reference re Same-Sex Marriage, [2004] 3 SCR 698, 2004 SCC 79.

freedom of expression would be treated any differently by the Court. In

other words, there is no reasonable basis to claim that the amendments
contained in Bill C-16 are in any way likely to be found to be unconstitu-
tional. In contrast to the claim of opponents that Bill C-16 was a game
changer, it does not bring anything dramatically new to constitutional law.
IV Shifting oppositional discourses
Notwithstanding the dubious nature of the legal claim, the argument

that Bill C-16 represents a serious threat to freedom of expression has
gained remarkable traction in a very short period of time. The parlia-
mentary debates and the discourse of the opposition to Bill C-16 can be
tracked to the pre- and post-Peterson intervention. Prior to the Peterson
intervention, the opposition to Bill C-16 was framed in terms of redun-
dancy, vagueness, public washrooms, and other sex-segregated spaces as
well as some general references to freedom of religion. However, follow-
ing the intervention and the media attention surrounding it, the opponents
to Bill C-16 quickly jumped on the freedom-of-expression bandwagon. The
other objections remained, but freedom of expression became one of the
focal points of those who opposed the bill.
The initial opposition to Bill C-16 closely tracked the opposition to the
previous trans rights initiatives: Bill C-279 and Bill C-389. Lunny’s analy-
sis of these earlier legislative debates identifies two main rhetorical strate-
gies. In the first, opponents ‘appealed to the rigorous principles of good
law-making. It was the responsibility of lawmakers, it was argued, to make
sound and unambiguous legislation that would clearly represent the
intention of Parliament and that could be read and understood
plainly.’59 This appeal to good law-making argued that the legislation
was redundant – that is, that the CHRA had already been interpreted as
including and prohibiting discrimination against trans individuals by in-
cluding trans within the meaning of sex.60 It argued that the language,
particularly the ‘gender expression,’ was vague, undefined, and ambigu-
ous.61 The second rhetorical strategy used by the opponents ‘played on
irrational fears of sexual threat,’ wherein trans rights protections would
threaten the safety of women and girls in sex-segregated spaces, particu-
larly public bathrooms.62 It argued that it would allow men to dress up as
59 Lunny, Debating Hate Crime, supra note 12 at 106.

60 Ibid at 113–16.
61 Ibid at 116–18.
62 Ibid at 106; see also discussion at 118–23.

women and enter women’s bathrooms for the purposes of sexual assault
or interference. The arguments were not subtle, with opponents arguing
that the law would empower and protect sexual predators, including pedo-
philes.63 Relatedly, the argument implied that trans woman were not really
women but, rather, in some kind of ‘disguise’ and should not be able to
access women-only spaces. As Lunny writes, ‘[w]ithin this political mes-
sage, transgendered and transsexual people are not authentic gendered
beings; they have deceitfully altered themselves in such a way as to mask
their true identity.’64 Indeed, the bathroom argument gained sufficient
traction that Senator Plett added an amendment to Bill C-279 excluding
these sex-segregated spaces before the bill died on the order paper.65
The first parliamentary debate on Bill C-16 suggested that the three
themes of redundancy, vagueness, and the threat to sex-segregated
spaces would again dominate the oppositional discourse. Bill C-16 re-
ceived second reading in the House of Commons on 18 October 2016.
The Peterson controversy had begun to gain media coverage but with
one exception – it did not inform the House of Commons debate. Those
members of Parliament who spoke against Bill C-16 did so in terms of
redundancy, vagueness, sex-segregated spaces as well as threats to faith-
based beliefs.66 MP Harold Albrecht raised a number of these objections
as well as a general question about freedom of expression, expressing
63 See notes 13–14 above. Justin Ling, ‘The Harper Government Is Thwarting a Bill De-
signed to Protect the Transgender Community from Hate Crimes,’ Vice (23 June
2014), online: Vice Media <https://www.vice.com/en_ca/article/3b7pkw/trans-
rights-bill-c-29-senate>.
64 Lunny, Debating Hate Crime, supra note 12 at 121. The argument of the threat of trans
individuals to sex-segregated spaces and women’s bathrooms in particular has since
become a major focus of the anti-trans campaigns in the United States. North Caro-
lina passed a so-called bathroom bill – House Bill 2, The Public Facilities Privacy and
Security Act (March 2016); Tal Kopan & Eugene Scott, ‘North Carolina Governor Signs
Controversial Transgender Bill,’ CNN Politics (24 March 2016), online: Cable News
Network <http://www.cnn.com/2016/03/23/politics/north-carolina-gender-
bathrooms-bill/index.html>. The law’s provisions on bathroom usage were subse-
quently repealed by North Carolina General Assembly. US, HB 142, An Act to Reset S.L.
2016-3, SL 2017–4 (30 March 2017). However, at the time of writing, bathroom bills
are currently pending in fifteen state legislatures. Alabama, Arkansas, Illinois, Kansas,
Kentucky, Minnesota, Missouri, Montana, New York, South Carolina, South Dakota,
Tennessee, Texas, Virginia, Washington, and Wyoming each introduced bathroom
bills during the 2017 legislative session.
65 Standing Senate Committee, ‘Twenty-Fourth Report,’ supra note 7.
66 E.g. the response speech on second reading by Member of Parliament (MP) Michael
Cooper focused on redundancy – that is, the claim that the CHRA already provides
protection to trans individuals. Tribunals and courts have interpreted the prohibition
of discrimination on the basis of sex and sexual orientation to include trans Cana-
dians. MP Peter Kent spoke against the bill in terms of its redundancy and that exist-
ing grounds were sufficient to provide protection.

concern that it may prevent discussion of ‘public policy issues such

as this one, on which they may disagree with the government agenda.’67
The concern hints at the Peterson concerns, yet it can be distinguished.
There is no specific concern regarding compelled speech or pronouns.
Rather, the concern echoes those issues previously raised about whether
human rights protections will stifle the ability of those individuals with dif-
fering views, including faith-based views, from expressing their views.68
Brad Trost, after asking several questions regarding women’s rape crisis
centres, was the only member to directly address the Peterson freedom-of-
expression issue: ‘I would also note that there are some free speech issues.
We see them with University of Toronto clinical psychology professor
Jordan Peterson who has been discussing this bill.’69 It is brief, and lacking
in detail, but it gestures toward the controversy that was beginning to per-
colate.
Bill C-16 passed second reading and was referred to the Standing
Committee on Justice and Human Rights. The Standing Committee
hearings were relatively brief, held over two days, with only the minister
of justice and the deputy minister appearing as witnesses. MP Ted Falk
was the only member of the Standing Committee to raise a freedom of
expression concern: ‘There has been much discussion in the media
lately concerning the matter of free speech and the state of free speech
here in Canada. Do we really know if this bill will have an impact on free
speech? No, we don’t.’70 Falk’s comment gestures toward the controversy
that was picking up steam in the media, but it did not articulate the
nature of the freedom-of-expression concerns in any detail. No member
of the committee or witness who supported Bill C-16 addressed the
freedom-of-expression issue. The Standing Committee adopted Bill C-16
without amendment on 3 November 2016.
Bill C-16 returned to the House of Commons for a third reading on
18 November 2016. Faith-based questions again surfaced.71 Representing
67 House of Commons Debates, 42nd Parl, 1st Sess, No 92 (18 October 2016) at 1050 (Hon
Harold Albrecht).
68 Albretch, in a second intervention, again gestured toward freedom of expression, but
only in relation to whether faith-based groups ‘[w]ill . . . have the freedom to teach
their children and practise their beliefs without being accused of hate speech or being
accused of human rights violations.’
69 House of Commons Debates, 42nd Parl, 1st Sess, No 92 (18 October 2016) at 1355 (Brad
Trost).
70 Parliament of Canada (House of Commons), Standing Committee on Justice and
Human Rights, Evidence, 42nd Parl, 1st Sess, No 33 (3 November 2016) at 1100,
online: Parliament of Canada <https://www.ourcommons.ca/DocumentViewer/en/
42-1/JUST/meeting-33/evidence>.
71 Marilyn Gladu and Cathay Wagantall both raised concerns about the potential impact
on faith-based communities. House of Common Debates, 42nd Parl, 1st Sess, No 110

the government, Sean Casey responded to these concerns, noting that

nothing in the bill would negatively impact on ‘inter family discus-
sions.’72 Cathay Wagantall then asked a question in relation to the Peter-
son freedom-of-expression controversy: ‘We have unfortunately already
witnessed this chill on free speech at the University of Toronto as Profes-
sor Jordan Peterson is under constant attack for his refusal to use gender-
neutral pronouns.’73 No specific response was given to this freedom-of-
expression concern by the supporters of the bill in the House of
Commons. The bill passed third reading.
The Senate debates on Bill C-16 took a decidedly different turn. On sec-
ond reading, Senator Plett, the lead Conservative opponent of Bill C-16,
was out of the gate with the Peterson freedom-of-expression claims:
[P]olitical correctness authoritarians have narrowed the scope of acceptable
thought and discourse in academia and, by extension, the general public. How-
ever, we as legislators and public policy-makers should not be afraid of the difficult
conversations . . . Legislation that has serious implications on freedom of speech –
and, for the first time in Canadian law, compelled speech – cannot be passed so
flippantly without thorough public discourse, debate and consideration.74
Plett’s concerns are framed explicitly in terms of compelled speech, gen-
der pronouns, and freedom of expression:
University of Toronto Professor, Dr. Jordan Peterson got a lot of attention re-
cently, when highlighting this issue around artificially-constructed gender neu-
tral pronouns or ‘preferred pronouns.’ When I say preferred pronouns, I am
referring to the infinite list that accompanies the 70+ genders that one can
choose to identify with, replacing the traditional he, she, his, her, etc.
(18 November 2016) at 1010 (Marilyn Gladu): ‘There are many people in this country
who do not believe that a transgendered lifestyle is God’s plan or that it is medically
beneficial, so if we pass this legislation, would that then affect their ability to tell their
children not to speak about those ideas in a public place?’ See also House of Common
Debates, 42nd Parl, 1st Sess, No 110 (18 November 2016) at 1305 (Cathy Wagantall):
‘What would the impact of implementing Bill C-16 be on immigrant groups and faith
groups who may be at odds with gender fluidity concepts? Would they have the free-
dom to teach their children and practise their beliefs without being accused of hate
speech or being accused of human rights violations? Yes or no? 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 is sacred to freedom in our society.’
72 House of Common Debates, 42nd Parl, 1st Sess, No 110 (18 November 2016) at 1015
(Sean Casey).
73 Ibid at 1305 (Cathay Wagantall).
74 Debates of the Senate, 42nd Parl, 1st Sess, Vol 150, Issue 74 (22 November 2016) (Hon
Donald Neil Plett).

For the law to mandate usage of this language is, both in his mind and mine,
preposterous.75
By the time that Bill C-16 went to the Senate Committee on Legal and
Constitutional Affairs, the freedom-of-expression issue had become a
central argument of the Bill’s opponents. Several of the witnesses ap-
pearing before the committee exclusively addressed the freedom-of-
expression issue. Peterson was one of the witnesses to appear before the
committee, and his testimony repeated his claims about the unprece-
dented violation of freedom of expression.76 Both Brown and law profes-
sor Bruce Pardy have focused exclusively on the extent to which Bill C-
16 would mandate pronoun usage and the danger of this compelled
speech to freedom of expression.
The increasing centrality of the argument now required that the sup-
porters of the bill specifically address and rebut the claims. Jody Wilson-
Raybould, the minister of justice, addressed the freedom-of-expression
concern at considerable length for the first time.77 She distinguished
between the hate propaganda provisions of the Criminal Code and the
amendments to the CHRA. She noted that, while the hate propaganda
provisions do impose a limit on freedom of expression, it is a narrow one
that the Supreme Court of Canada has upheld as a reasonable limit. In
terms of the CHRA, the minister stated: ‘[T]he Canadian Human Rights
Act does not legislate particular modes of speech. To be clear, these
amendments will not create any specific rules about the use of gendered
pronouns.’78 In questioning, both the minister and the deputy minister,
William Pentney, reiterated this position.
I appeared before the Committee, and focused my remarks entirely on rebut-
ting the claims that Bill C-16 would criminalize the misuse of pronouns, or vio-
late freedom of expression as interpreted by the Supreme Court of Canada. The
lawyers representing the Canadian Bar Association addressed this issue both in
their submissions and in response to questions from Senators. Ms. O’Brien did
so at considerable length, emphasizing that none of the amendments proposed
75 Debates of the Senate, 42nd Parl, 1st Sess, Vol 150, Issue 101 (2 March 2017) at 1500 (Do-
nald Neil Plett).
76 Petersons’ claims were amplified again through the media coverage of his appearance
at the Senate. See Simona Chiose, ‘U of T Professor Opposes Transgender Bill at Sen-
ate Committee Hearing,’ Globe and Mail (17 May 2017), online: Globe and Mail
<https://www.theglobeandmail.com/news/national/education/u-of-t-professor-
opposes-transgender-bill-at-senate-committee-hearing/article35035768>.
77 Canada, Senate of Canada, Proceedings of the Standing Senate Committee on Legal and Con-
stitutional Affairs, 42nd Parl, 1st Sess, No 28 (4 May 2017) [Proceedings of the Standing
Committee].
78 Ibid.

by Bill C-16 ‘are not going to dictate that people must call somebody by a partic-
ular pronoun . . . [and] are not going to hamper academic discussions or de-
bates about sex and gender.’ Ms. O’Brien analogized to the Supreme Court
decision in Vriend, where the Court balanced competing rights, noting that ‘The
court found that the provincial legislation contained these internal mechanisms
to balance those rival concerns, and they could likewise balance those rival con-
cerns of expression, religion and pronouns.’79
On third reading of Bill C-16, opponents kept the freedom-of-
expression argument front and centre, and supporters defended the bill
from this critique. When the bill was moved for third reading on 30 May
2017, Senator Grant Mitchell addressed two major concerns that had
been raised: freedom of expression and women’s safety. Senator
Raymonde Sainte-Germain, speaking in support of the bill, like Mitchell,
addressed the freedom of expression and women’s safety arguments. On
8 June, Senator Plett’s speech focused exclusively on the argument that
Bill C-16 ‘likely constitute[s] the most egregious infringement on freedom
of speech in Canadian history,’ narrowing on Peterson’s claims about
compelled speech, pronouns, the threat to freedom of expression, and it
reiterated the claims that Peterson could face imprisonment for failing to
use the correct pronouns. In response to those who suggested that there
was nothing in the bill that would specifically mandate the use of specific
pronouns, Plett argued that the Senate should then make its intentions
clear. He concluded by introducing an amendment to Bill C-16 that spe-
cifically addressed this issue, by adding a clause that stated that ‘nothing in
this Act requires the use of a particular word or expression that corre-
sponds to the gender identity or expression of any person.’80
The debate that followed the proposed amendment focused once
again on this question of pronouns, compelled speech, and freedom of
79 Ibid. In response to a question from Senator Plett, the minister of justice reiterated:
‘As I stated in my remarks, one can’t compel somebody to refer to somebody by way of
a pronoun or otherwise. There is nothing within Bill C-16 that would compel some-
body to have to call somebody by the pronoun “he” or “she” or otherwise.’ The dep-
uty minister added: ‘I would encourage you, in looking at the freedom of expression
argument, to also look at the harder edge of this, which is some of what is being said
on the Internet, some of which is otherwise being communicated because it is ugly. If
it was ever to fall within “willfully and intentionally promoting hatred” and subject to
a prosecution with the Attorney General’s consent, it would be on the extreme end of
incitement to violence.’
80 Journals of the Senate, 42nd Parl, 1st Sess, No 104 (9 March 2017). Senator Plett pro-
posed ‘that Bill C-16 be not now read a third time, but that it be amended on page 2,
by adding the following after line 3: “2.1 The Act is amended by adding the following
after section 4: 4.1 For greater certainty, nothing in this Act requires the use of a par-
ticular word or expression that corresponds to the gender identity or expression of
any person.”’

expression. Senator Marc Gold, speaking against the amendment, exten-

sively engaged and refuted the free speech arguments, noting that the
bill was not about pronouns, would not require the usage of any particu-
lar pronoun, and would ‘not prevent an individual, such as Professor Pe-
tersen, from expressing his objection to using gender-neutral pronouns.’
Gold emphasized the extent to which the human rights commissions, tri-
bunals, and, ultimately, courts will balance competing rights, bound by
the Charter: ‘At every stage of the human rights process, the question of
the constitutional right to freedom of expression will be considered . . .
in assessing whether there has been discrimination under the act.’ The
amendment failed, but not before the freedom-of-expression argument
had taken centre stage for both the opponents and supporters of Bill
C-16. While some senators continued to raise concerns about redun-
dancy, vagueness, and public washrooms, freedom of expression had
emerged as the major rallying cry against the bill. Bill C-16 passed by a
vote of sixty-seven to eleven.
The idea of shifting discourses within conservative law and politics is
hardly new. From opposition to slavery and civil rights, opponents have
long engaged in a discursive politics of reframing.81 Explicitly racist or
sexist language is reframed to fit changing social norms. In the context
of lesbian, gay, bisexual, and transgender (LGBT) rights, there has been
a significant transformation in the discourse of opposition in recent
years. The opposition to same-sex marriage, for example, has shifted
considerably. For example, in the United States, the language around
the Defence of Marriage Act in the early 1990s was explicitly framed in the
terms of the traditional family, religion, morality, and the denunciation
of homosexuality.82 However, a decade later, when Congress was debat-
ing the Federal Marriage Amendment, this language had shifted. The
denunciation of homosexuality had all but disappeared. In its place
came a new discourse rejecting the charge of discrimination. Conserva-
tives had to meet head on the argument that they were discriminating
against gay men and lesbians. They insisted that they were not and called
the claim offensive.83
81 For the changing ways in which religious arguments were used to support slavery and
oppose civil rights for African Americans and the way in which similar arguments
around religious liberty were used to support sodomy laws and oppose gay rights, see
William Eskridge, Jr, ‘Noah’s Curse: How Religion Often Conflates Status, Belief and
Conduct to Resist Anti-Discrimination Norms’ (2011) 45:3 Ga L Rev 657.
82 28 USC § 1738C (1996).
83 See US, Cong Rec, Senate, vol 150, 15, at 20075 (2004) (Rev Richard Richardson):
‘The traditional institution of marriage is not discrimination. And I find it offensive to
call it that.’

The Federal Marriage Amendment failed. But the opposition to same-

sex marriage and gay rights continued. In the intervening years and
in the aftermath of the US Supreme Court’s recognition of same-sex
marriage rights, the political discourse shifted again. Conservative oppo-
nents to gay and lesbian rights have shifted to the language of religious
freedom and discrimination. Same-sex marriage and various LGBT
rights protections are now cast as an affront to religious freedom. Anti-
LGBT religious freedom acts have been introduced in state legislatures
across the United States,84 religious liberty cases are being litigated, and
the US Supreme Court has agreed to review the case of Masterpiece Cake-
shop v Colorado Civil Rights Commission, in which a gay couple filed a com-
plaint against a baker who refused to supply a wedding cake.85 The
protection of religious liberty against LGBT claims has become a main-
stay of conservative politics.86
Opponents to gay, lesbian, and trans rights have for three decades
shifted their political discourse. They have increasingly sought to dis-
tance themselves from outright condemnation of homosexuality, and,
now, trans identity, and moved instead to the discourse of constitutional
rights. The opposition to Bill C-16 exemplifies this kind of shifting con-
servative discourse as opponents seek to cloak their arguments in more
legitimate constitutional discourses. However, unlike in the United
States, where conservatives have rallied around religious liberty, in Can-
ada, freedom of expression appears to have emerged, at least for the
moment, as the focal point.87 The next section explores why this dubious
84 See American Civil Liberties Union, ‘Past Anti-LGBT Religious Exemption Legislation
across the Country,’ online: American Civil Liberties Union <https://www.aclu.org/
other/past-anti-lgbt-religious-exemption-legislation-across-country?redirect=anti-lgbt-
religious-refusals-legislation-across-country>.
85 370 P 3d 272 (US SC 2017), request for certiorari granted 26 June 2017, online: SCO-
TUS Blog <http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-
colorado-civil-rights-commn/>.
86 See White House, Office of the Press Secretary, ‘Presidential Executive Order Promot-
ing Free Speech and Religious Liberty’ (4 May 2017), online: US White House
<https://www.whitehouse.gov/the-press-office/2017/05/04/presidential-executive-
order-promoting-free-speech-and-religious-liberty>. President Donald Trump’s execu-
tive order does not mention lesbian, gay, bisexual, transgender (LGBT) rights, but it
is broadly considered to be directed toward providing protection to religious conserva-
tives who discriminate against LGBT and other sexual minorities.
87 Interestingly, the free speech anti-trans articulation may be gaining traction in the
United States, with the recent controversy around the anti-trans ‘free speech bus’ cam-
paign. ‘An Anti-Transgender “Free Speech Bus” Is Rolling through the East Coast
Sparking Protests – and a Video Game,’ Washington Post, online: The Washington Post
<https://www.washingtonpost.com/news/morning-mix/wp/2017/03/31/an-anti-
transgender-free-speech-bus-is-rolling-through-the-east-coast-sparking-protests-and-a-
video-game/?utm_term=.bd39e03f9af2>.

claim about the threat to freedom of expression, in the face of allegedly

increasing political correctness and tyrannical human rights commis-
sions, became the perfect foil.
V The traction of specious claims: freedom of expression in a post-truth era
Within eight months, freedom of expression emerged as the central

opposition discourse to Bill C-16. The argument is one that I would cast
as specious: ‘[A]pparently good or right though lacking real merit;
superficially pleasing or plausible: specious arguments. 2. pleasing to the
eye but deceptive.’88 As discussed in Part II, there is little legal merit in
the freedom-of-expression argument. Nothing in the bill criminalizes
speech, although over the course of the debate freedom-of-expression
advocates seemed to acknowledge this and shifted their focus to the
impact of the amendments to the CHRA, specifically the extent to which
these amendments would mandate pronouns, compel speech, and ulti-
mately threaten imprisonment to those who refused. Legal argument re-
futing the claims, while reassuring to some senators, was unable to
displace the discursive power of the compelled speech claims. The bill
has passed, but the compelled speech argument lives on and will likely
remain a chief rhetorical and legal vehicle for ongoing resistance. The
bill exemplifies the often contradictory nature of legal victories and the
extent to which each victory simultaneously contains seeds of defeat
within it.89 Why, then, has this argument become so powerful? What
makes the claim so deceptively attractive? Why does the freedom of
expression, compelled speech, and gender pronouns argument have so
much traction?
In the new age of post-truth or post-factual politics, it is perhaps
becoming unsurprising that claims with no factual basis are taking root.
From Breitbart news, to President Donald Trump’s Twitter feed, to the
echo chambers of alternative-right social media, patently false claims cir-
culate daily. Free speech has long been a particularly inflammatory rally-
ing cry in the United States, and there is a long history of opposing civil
rights claims with civil liberties and of opposing equality-based claims
with liberty-based ones. Canadian politics has not been immune to these
88 Dictionary.com, online: Dictionary.com <http://www.dictionary.com>.

89 On the extent to which both legal victories and defeats are precarious and contradic-
tory, see Brenda Cossman, ‘Canadian Same Sex Relationship Recognition Struggles
and the Contradictory Nature of Legal Victories’ (2000) 48:1 Clev St L Rev 49; Brenda
Cossman, ‘Lesbians, Gay Men and the Canadian Charter of Rights and Freedoms’
(2002) 40:3–4 Osgoode Hall LJ 223.

equality versus liberty debates, but, until this point, freedom-of-expression

claims have not stirred the passions and prejudices of the public, at least
not until more recently.
However, within the last decade, freedom-of-expression claims have
become more potent rhetorical weapons in the arsenal of the far right in
Canada. A particularly fertile terrain has been laid that has enabled the
claim around gender pronouns and compelled speech to take root. It is
beyond the scope of this article to explore the rise of post-truth claims or
even to fully explain the traction of these arguments, it can gesture
toward an interconnected series of developments that may partially
explain the explosive traction of the oppositional discourse to Bill C-16.
A POLITICAL CORRECTNESS AND FREE SPEECH UNDER ATTACK

The first and most obvious basis for the traction of the gender pronoun/
compelled speech argument has been the popularization of the conser-
vative attack on political correctness and the idea of free speech under
attack. The idea of political correctness gained currency in the 1990s,
beginning with the publication of Alan Bloom’s The Closing of the Ameri-
can Mind, which was popularized through an article in the New York
Times90 and amplified again through Dinesh D’Souza’s Illiberal Education:
The Politics of Race and Sex on Campus.91 The critique was directed initially
at the left within higher education; particularly at the ways in which the
inclusion of feminism, multiculturalism, Marxism, and postmodernism
was leading to a new orthodoxy of speech, practices, and behaviours.92
The concept of political correctness quickly became associated with
speech codes within universities and limitations on racist and sexist
speech and was seen, accordingly, as a threat to free speech and, in the
United States, to the First Amendment.
90 Richard Bernstein, ‘Ideas & Trends; The Rising Hegemony of the Politically Correct,’
New York Times (28 October 1990), online: The New York Times Company <http://
www.nytimes.com/1990/10/28/weekinreview/ideas-trends-the-rising-hegemony-of-
the-politically-correct.html?pagewanted=all>. As Paul Berman describes, ‘the national
debate over political correctness began in the fall of 1990 with a small and innocuous-
seeming article in the New York Times, and within a few months was plastered across
the covers of Newsweek, the Atlantic, New York, the New Republic, the Village Voice, not to
mention the TV show talk shows and the news paper op-ed pages.’ See Paul Berman,
‘Introduction: The Debate and Its Origins’ in Paul Berman, ed, Debating P.C.: The Con-
troversy over Political Correctness on College Campuses (New York: Dell Publishing, 1992)
[Berman, ‘Introduction’].
91 Dinesh D’Souza, Illiberal Education: The Politics of Race and Sex on Campus (New York:
Free Press, 1991).
92 Berman, ‘Introduction,’ supra note 90. See also Marilyn Friedman & Jan Narveson,
Political Correctness: For and Against (Lanham: Rowman & Littlefield, 1995).

The idea of political correctness has remained a mainstay of conserva-

tive politics, an accusation directed at liberals in relation to a broad
range of diversity and multicultural initiatives. As a public controversy,
the allegations of ‘political correctness’ ebb and flow; yet the term has
had remarkable traction over the decades. It continues to be synony-
mous with allegations of left/liberal orthodoxies and the censorship of
words and practices that are too easily deemed to be offensive. In 2015,
there was another uptick in the allegations of political correctness, par-
ticularly on college campuses.93 The Trump campaign brought ‘political
correctness’ back into mainstream politics.94 It is a critique that has
crossed the border and appears to be gaining momentum again. An
Angus Reid poll in August 2016 suggests that 76 per cent of Canadians
agree that the ‘current climate of outrage over political correctness has
gone too far.’95 The subsequent media coverage amplified the concern.96
93 See e.g. Greg Lukianoff & Jonathan Haidt, ‘The Coddling of the American Mind,’ The
Atlantic (September 2015), online: The Atlantic Monthly Group <https://www.
theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-american-mind/
399356/> [Lukianoff & Haidt, ‘Coddling’]; Catherine Rampell, ‘Free Speech Is Flunk-
ing Out on College Campuses,’ Washington Post (22 October 2015), online: The Wash-
ington Post <https://www.washingtonpost.com/opinions/free-speech-is-flunking-out-
on-college-campuses/2015/10/22/124e7cd2-78f5-11e5-b9c1-f03c48c96ac2_story.
html?tid=a_inl&utm_term=.8ddb50a5974a>; Rahel Gebreyes, ‘Wesleyan Student De-
scribes Backlash for Op-Ed Criticizing Black Lives Matter,’ Huffington Post (7 October
2015), online: TheHuffingtonPost.com <http://www.huffingtonpost.ca/entry/
wesleyan-argus-black-lives-matter_us_56156a9de4b0cf9984d80fcb>.
94 At the first Republican debate, Trump stated: ‘I think the big problem this country
has is being politically correct . . . I’ve been challenged by so many people, and I don’t
frankly have time for total political correctness.’ Transcript of Primetime Republic
Debate, Time (11 August 2015), online: Time <http://time.com/3988276/republican-
debate-primetime-transcript-full-text/>. His attack on political correctness continued
to be a major theme through the Republican primaries and the presidential election.
See Karen Tumulty & Jenna Johnson, ‘Why Trump May Be Winning the War on
“Political Correctness,”’ Washington Post (4 January 2016), online: The Washington
Post <https://www.washingtonpost.com/politics/why-trump-may-be-winning-the-war-
on-political-correctness/2016/01/04/098cf832-afda-11e5-b711-1998289ffcea_story.
html?utm_term=.5f106b83fc34>; Philip Bump, ‘The Interesting Evolution of Political
Correctness,’ Washington Post (17 December 2015), online: The Washington Post
<https://www.washingtonpost.com/news/the-fix/wp/2015/12/17/the-interesting-
evolution-of-political-correctness/?tid=a_inl&utm_term=.63a87240ef53>; Amanda Hess,
‘How Political Correctness Went from Punch Line to Panic,’ New York Times Magazine
(19 July 2016), online: The New York Times Company <https://www.nytimes.com/
2016/07/24/magazine/how-political-correctness-went-from-punch-line-to-panic.html>.
95 Angus Reid Institute, ‘Majority of Canadians Say Political Correctness Has Gone Too
Far’ (August 2016), online: Angus Reid <http://angusreid.org/political-correctness/>.
96 See e.g. ‘The Threat of Political Correctness – Real and Imagined,’ Globe and Mail
(2 September 2016), online: The Globe and Mail <https://www.theglobeandmail.

The idea of free speech under attack has also become a mainstay of a
certain brand of conservatives in Canada. Through the 2000s, Ezra Levant
and Mark Steyn became self-proclaimed free speech advocates, defending
their right to publish provocative views. Both Levant and Steyn were the
subjects of human rights commission complaints, specifically in relation to
their anti-Muslim publications.97 While all of the complaints were dis-
missed, Levant and Steyn continued to speak out against the threat to free-
dom of expression in Canada from liberals, leftists, and multiculturalists.
The compelled speech arguments around Bill C-16 fed directly into
this rhetoric of political correctness and freedom of speech under attack.
Gender pronouns were framed as yet another example of political cor-
rectness gone too far. Peterson explicitly staked his claim on the lan-
guage of political correctness. His initial video is called Professor against
Political Correctness, in which he defends his ‘right to be politically incor-
rect.’98 He describes this video as ‘as a means of speaking out against our
culture’s politically correct insanity.’99 He repeatedly uses the example
of thirty-one different pronouns to suggest the absurdity of the claim, a
kind of res ipsa loquitar of political correctness gone too far. As the con-
troversy mounted, some of Peterson’s most vociferous opponents rein-
forced his own claims: that the forces of political correctness were
seeking to silence those with whom they disagreed. From the initial pro-
test of the rally for free speech, with the use of white noise machines, to
various protests seeking to shut down his speaking engagements, Peter-
son’s claim about his opponents’ censorious position was publically per-
formed. None of this was missed by the media, and the media coverage
simply reinforced his message about political correctness and free
speech under attack.100 The threats directed at Peterson’s detractors
com/opinion/editorials/the-threat-of-political-correctness-real-and-imagined/
article31691976/>.
97 Ezra Levant was the subject of a human rights complaint following the Western Stan-
dard’s publication of the Jyllands-Posten Muhammad cartoons. Mark Steyn was part of
a human rights complaint filed by the Canadian Islamic Congress against Maclean’s
magazine in December 2007 with the Canadian Human Rights Commission, the Brit-
ish Columbia Human Rights Tribunal, and the Ontario Human Rights Commission.
The articles in question included a column by Mark Steyn entitled ‘The Future Be-
longs to Islam.’ Mark Steyn, ‘The Future Belongs to Islam,’ MacLeans (20 October
2006), online: Rogers Media <http://www.macleans.ca/culture/the-future-belongs-to-
islam/>).
98 Jordan Peterson, ‘The Right to Be Politically Incorrect,’ National Post (8 November
2016), online: PostMedia<http://nationalpost.com/opinion/jordan-peterson-the-
right-to-be-politically-incorrect/wcm/00877c6d-39b4-4d62-8055-20b94aebc662>.
99 Ibid.
100 See e.g. the protest at McMaster University. Dave Beatty, ‘McMaster Debate with Contro-
versial Professor Jordan Peterson Disrupted by Activists,’ CBC (19 March 2017), online:

seemed to go more unnoticed. The critique of ‘political correctness

gone too far’ and ‘free speech under attack’ has often singled out two
sites – universities and human rights commissions. Both universities and
human rights commissions have been the subject of political correctness
and censorship critiques, and both were deeply implicated in the Bill C-16
controversy.
1 demonization of human rights commissions

The gender pronoun/compelled speech argument fed directly into an
existing public discourse on human rights commissions and censorship.
Richard Moon has documented the ways in which conservatives in Can-
ada have demonized human rights commissions.101 He focuses on Ezra
Levant’s critique of human rights commissions as fundamental threats to
freedom of expression and democracy.102 Moon traces the ways in which
these exaggerated claims were picked up by mainstream media and
came to influence political debate. Levant’s claim that human rights tri-
bunals were a site of unaccountable and undemocratic censorship of
speech had seeped into mainstream discourse. Peterson’s critique of Bill
C-16 picked up on this fertile terrain, focusing on the OHRC in particu-
lar. He has repeatedly described the OHRC in his University of Toronto
debate, and he has continued to reiterate it through social media, media
interviews, and public appearances.103
Peterson’s arguments about compelled speech in the context of an
already censorious tribunal strengthened his claim. Human rights tribunals
may be bad enough when they enforce hate speech laws, telling individuals
what they cannot say, but now these tribunals were telling individuals what
they must say. Compelled speech in the face of censorious tribunals made
the violation of freedom of expression that much more ominous.
CBC/Radio-Canada <http://www.cbc.ca/news/canada/hamilton/mcmaster-debate-
with-controversial-professor-jordan-peterson-disrupted-by-activists-1.4031843> [Beatty, ‘Mc-
Master Debate’].
101 Richard Moon, ‘The Attack on Human Rights Commissions and the Corruption of
Public Discourse’ (2010) 73 Sask L Rev 93.
102 Ezra Levant, Shakedown: How Our Government is Undermining Democracy in the Name of
Human Rights (Toronto: McClelland and Stewart, 2009).
103 In the University of Toronto debate, Peterson stated: ‘I have many lawyers’ opinions.
Lawyer one – human rights tribunal is a kangaroo court in my opinion and should be
abolished.’ ‘University of Toronto Free Speech Debate,’ YouTube (21 November
2016), online: YouTube <https://www.youtube.com/watch?v=68NHUV5me7Q>. In
his interview with Toronto Life, he again described the OHRC as ‘perhaps the biggest
enemy of freedom currently extant in Canada.’ Jason McBride, ‘The Pronoun War-
rior,’ Toronto Life (25 January 2017), online: Toronto Life Publishing Company Lim-
ited <https://torontolife.com/city/u-t-professor-sparked-vicious-battle-gender-
neutral-pronouns/>.

2 universities
The gender pronoun/compelled speech controversy also fed directly
into a public discourse on universities as sites of political correctness and
censorship. Allegations of political correctness in the 1980s focused
largely on universities, with the emergence of speech codes, alongside a
more academic critique of the Western canon. The current round of al-
legations of political correctness bubbled up in relation to claims around
‘safe spaces,’ ‘trigger warnings,’ and ‘micro-agressions.’104 Several high-
profile controversies on American campuses in the fall of 2015 put the
issue of political correctness and the threat to free speech in the media
spotlight.
In the fall of 2015, a controversy over Halloween costumes devolved
into a battle over free speech and political correctness.105 A professor
wrote an email in response guidelines from the Intercultural Affairs
Committee at Yale University about avoiding ‘culturally unaware and
insensitive’ Halloween costumes.106 Erika Christakis’s email questioned
the wisdom of the university’s instructions. Her email set off highly publi-
cized protests about racial discrimination and insensitivity at Yale107 and,
in turn, a debate about the state of free speech on campuses.108 At the
104 In Lukianoff & Haidt, ‘Coddling,’ supra note 93, Lukianoff and Haidt write: ‘Search-
engine trends indicate that the phrase broke into mainstream use online around
2011, spiked in 2014, and reached an all-time high in 2015. The use of trigger warn-
ings on campus appears to have followed a similar trajectory; seemingly overnight, stu-
dents at universities across the country have begun demanding that their professors
issue warnings before covering material that might evoke a negative emotional
response.’
105 Conor Friedersdorf, ‘The New Intolerance of Student Activism,’ The Atlantic (9
November 2015), online: The Atlantic Monthly Group <https://www.theatlantic.
com/politics/archive/2015/11/the-new-intolerance-of-student-activism-at-yale/
414810/>.
106 Liam Stack, ‘Yale’s Halloween Advice Stokes a Racially Charged Debate,’ New York
Times (8 November 2015), online: The New York Times Company <https://www.
nytimes.com/2015/11/09/nyregion/yale-culturally-insensitive-halloween-costumes-
free-speech.html>.
107 Ryan Wilson, ‘An Open Letter to Master Christakis,’ DOWN Magazine (31 October
2015), online: DOWN Magazine <http://downatyale.com/post.php?id=430>, criticiz-
ing her defence of wearing racist costumes as part of a broader problem of racism con-
fronting students of colour at Yale.
108 See e.g. Conor Friedersdorf, ‘The Perils of Writing a Provocative Email at Yale,’ The
Atlantic (26 May 2016), online: The Atlantic Monthly Group <https://www.theatlantic.
com/politics/archive/2016/05/the-peril-of-writing-a-provocative-email-at-yale/
484418/>. Christakis, who subsequently resigned her position at Yale, wrote in the
Washington Post. Erika Christakis, ‘My Halloween Email Led to a Campus Firestorm –
and a Troubling Lesson about Self-Censorship,’ Washington Post (28 October 2016),
online: The Washington Post <http://downatyale.com/open-letter-to-associate-
master-christakis/>.

same time, a controversy erupted at the University of Missouri, where

the protests against racial discrimination sparked similar protests on
campuses across the country.109 While directing attention to racism on
campuses, the protest at the University Missouri included the infamous
remarks of a professor seeking to ban student journalists from covering
the protest.110 Critics decried the threat to freedom of speech by the
forces of political correctness.111 The resignation of the University of
Missouri president and provost in light of the protests spilled directly
over into the presidential campaign; Trump denounced the administra-
tion as ‘weak and effective,’ and Ben Carson, US secretary of housing
and urban development, said that they were a sign of the ‘politically cor-
rect police’ going too far.112
A similar, though perhaps initially more subdued, debate has played
out on campuses in Canada. The Centre for Constitutional Freedoms
has been publishing an annual Campus Freedom Index since 2011,
which measures university and student union’s policies and practices,
documenting incidents of censorship on campuses.113 The index points
to incidents involving controversial student groups and speakers – men’s
rights, pro-life, and anti-Israeli apartheid – where universities and/or stu-
dent unions have censored speech. In 2015, media stories and opinion
pieces began to pop up, sometimes by conservative commentators but
109 Anemona Hartocollis & Jess Bidgood, ‘Racial Discrimination Protests Ignite at Col-
leges Across the U.S.,’ New York Times (11 November 2015), online: The New York
Times Company <https://www.nytimes.com/2015/11/12/us/racial-discrimination-
protests-ignite-at-colleges-across-the-us.html?_r=0>.
110 Austin Huguelet & Daniel Victor, ‘I Need Some Muscle’: Missouri Activists Block Jour-
nalists,’ New York Times (9 November 2015), online: The New York Times Company
<https://www.nytimes.com/2015/11/10/us/university-missouri-protesters-block-
journalists-press-freedom.html>.
111 Reena Flores, ‘GOP Candidates Critical of University of Missouri Resignations,’ CBC
News (13 November 2015), online: CBC/Radio-Canada <http://www.cbsnews.com/
news/gop-candidates-slam-university-of-missouri-resignations/> [Flores, ‘GOP Candi-
dates’]; George F Will, ‘America’s Higher Education Brought Low,’ Washington Post
(25 November 2015), online: The Washington Post <https://www.washingtonpost.
com/opinions/higher-education-brought-low/2015/11/25/a79f118e-92d6-11e5-
b5e4-279b4501e8a6_story.html?tid=pm_opinions_pop_b&utm_term=.de7333fc3420>.
112 Flores, ‘GOP Candidates,’ supra note 111; Tom LoBianco & Eugene Scott, ‘Trump
Blasts ‘Weak, Ineffective’ Univ. of Missouri Heads,’ CNN (12 November 2015), online:
Cable News Network <http://www.cnn.com/2015/11/12/politics/university-of-
missouri-2016-candidates-react/>.
113 See Justice Centre for Constitutional Freedoms, ‘2016 Campus Freedom Index: More
Than 25 Universities Fail Campus Free Speech Test’ (November 2016), online: Justice
Centre for Constitutional Freedoms <https://www.jccf.ca/2016-campus-freedom-
index-more-than-25-universities-fail-campus-free-speech-test/>.

not exclusively so. The narrative was that political correctness was back
on Canadian campuses, and freedom of speech was threatened.114
The Peterson controversy, first and foremost, was a university contro-
versy. Peterson’s first video was largely, though not exclusively, focused
on political correctness on campuses. The controversy that ensued trans-
formed into the very thing that Peterson was criticizing. Students orga-
nized a protest against Peterson for his video, and, specifically, for his
refusal to use appropriate pronouns. The university administration sent
Peterson letters, advising him of his obligations to adhere to the Ontario
Human Rights Code.115 The rally for free speech, which was organized
by Peterson’s supporters, was the subject of a protest, with opponents
seeking to drown out Peterson’s speech with a white noise machine. Pe-
terson could, and now did, point to the controversy as evidence of politi-
cal correctness and free speech under attack on campuses.
The media wasted no time in making the connections between the Pe-
terson controversy and the war on free speech on university campuses.
Article after article explored the free speech under attack on campuses
angle.116 As the Peterson controversy moved beyond the University of
Toronto campuses to speeches, and sometimes protests, at other cam-
puses across the country, the media coverage continued to focus on this
114 See e.g. Rex Murphy, ‘Rex Murphy: “White Privilege” on the March,’ National Post
(15 May 2015), online: PostMedia <http://nationalpost.com/opinion/rex-murphy-
white-privilege-on-the-march/wcm/c85d2c28-4797-4542-9c0b-3122cc8babd2>: ‘Some
universities have become parodies of themselves, shops of petty moral vanity, given to
feverish exhibitions of their putative sensitivity and moral preciosity. Hence “trigger
warnings” for Ovid’s Metamorphoses, the hysteria over “rape culture” and, as here,
activist sideshows masquerading as academic courses.’ Barbara Kay ‘Universities Are
Teaching Students What to Think, Not How to Think,’ National Post (11 March 2015),
online: PostMedia <http://nationalpost.com/opinion/barbara-kay-universities-are-
teaching-students-what-to-think-not-how-to-think/wcm/e68e667b-434e-45f5-964a-
655e4b752209> (writing that ‘this sentiment is rapidly becoming the normal practice
at Canada’s public universities, which accept mob rule as a way to censor controversial
ideas on campus’); Neil MacDonald, ‘Mansplaining: The Return of Political Correct-
ness,’ CBC (17 March 2015), online: CBC/Radio-Canada <http://www.cbc.ca/news/
world/mansplaining-the-return-of-political-correctness-1.2999060>; John Carpay, ‘Uni-
versities Are Buying “Peace” by Condoning Mob Censorship,’ National Post (10 March
2015), online: PostMedia <http://nationalpost.com/opinion/john-carpay-
universities-are-buying-peace-by-condoning-mob-censorship>.
115 See Tom Yun, ‘U of T Letter Asks Jordan Peterson to Respect Pronouns, Stop Making
Statements,’ The Varsity (24 October 2016), online: University of Toronto <https://
thevarsity.ca/2016/10/24/u-of-t-letter-asks-jordan-peterson-to-respect-pronouns-stop-
making-statements/>.
116 Frances Widdowson, ‘Universities Are Letting Free Speech Crumble and They
Shouldn’t,’ Ottawa Citizen (25 November 2016), online: PostMedia <http://
ottawacitizen.com/opinion/columnists/widdowson-universities-are-letting-free-
speech-crumble-and-they-shouldnt>.

theme: free speech under threat at university campuses.117 Subsequent

developments on campuses in the United States, notably the violent pro-
test against alternative right speaker Milo Yiannopoulos, continued to
fan the flames of the critique.118 President Trump tweeted his outrage
and threatened to cut funding to universities that did not protect free-
dom of expression. Commentators in the Canadian media used the
Berkeley incident to amplify their critique.119 As in the United States,
the issue spilled over into the political domain; then Conservative leader
candidate Andrew Sheer weighed in on the issue, stating that universities
that do not protect free speech should lose their federal funding: ‘Cam-
puses are no longer the bastions of free speech that they once were.’120
The Peterson controversy was front and centre in his assessment.121 As
with the human rights commissions, Peterson’s arguments about free
speech under attack played into a popular discourse about free speech
and political correctness run amuck on university campuses. Even more
so than with the critique of human rights commissions, the protest reac-
tions on campuses against Peterson and the media coverage of them per-
formed and reinforced Peterson’s claim.
117 See e.g. Kristy Hutter, ‘Campus Clash: Students Battle over What Constitutes Free
Speech,’ CBC News (18 April 2017), online: CBC/Radio-Canada <http://www.cbc.ca/
news/canada/free-speech-versus-hate-speech-1.4058994>; see also Beatty, ‘McMaster
Debate,’ supra note 100; Liny Lamberink, ‘Polarizing Professor to Talk Free Speech,
Political Correctness, at Western University,’ Global News (14 March 2017), online:
Global News <http://globalnews.ca/news/3309862/polarizing-professor-to-talk-free-
speech-political-correctness-at-western-university/>; Sue-Ann Levy, ‘Waging the Battle
for Free Speech,’ Toronto Sun (27 June 2017), online: PostMedia <http://www.
torontosun.com/2017/06/27/waging-the-battle-for-free-speech>.
118 Thomas Fuller, ‘Berkeley Cancels Milo Yiannopoulos Speech, and Donald Trump
Tweets Outrage,’ New York Times (1 February 2017), online: The New York Times Com-
pany <https://www.nytimes.com/2017/02/01/us/uc-berkeley-milo-yiannopoulos-
protest.html?_r=0>; Madison Park & Kyung Lah, ‘Berkeley Protests of Yiannopoulos
Caused $100,000 in Damage,’ CNN (1 February 2017), online: Cable News Network
<http://www.cnn.com/2017/02/01/us/milo-yiannopoulos-berkeley/index.html>.
119 See e.g. Margaret Wente, ‘The Cultural Revolution (Read: The Triumph of Hysteria)
Comes to Campus,’ The Globe and Mail (13 November 2015), online: Globe and Mail
<https://www.theglobeandmail.com/opinion/the-cultural-revolution-read-the-
triumph-of-hysteria-comes-to-campus/article27251717/>.
120 Marie-Daniel Smith, ‘Take Away the Federal Funding If Universities Don’t Protect
Free Speech on Campus,’ National Post (19 April 2017), online: PostMedia <http://
nationalpost.com/news/politics/take-away-federal-funding-if-universities-dont-
protect-free-speech-on-campus-andrew-scheer-says/wcm/5419a340-b7b7-484a-8a47-
d3fa39b9189d>.
121 Ibid.

B BELIEF AND EXPERT AUTHORITY

Understanding the traction of the specious claims around Bill C-16 and
freedom of expression also raises questions of belief and authority. Why
and how do people come to believe in the validity of information? While
a full exploration of belief, bias, and expertise studies is beyond the
scope of this article, it is worth tapping these literatures to understand
some of the ways in which individuals come to believe some claims over
others, particularly those where there is strong evidence to the contrary.
There are two interrelated questions and processes at work. First, how
do individuals assimilate information and assess the validity of that infor-
mation? Second, what is the role of authority and expertise in shaping
the assimilation of that information?
Cognitive psychologists and behaviour economists have explored the
cognitive processes through which people assimilate and assess informa-
tion in biased and erroneous ways. Daniel Kahneman and Amos Tversky
have identified multiple ways in which human judgment and choice are
shaped by a range of non-rational heuristic processes, arguing that ‘peo-
ple rely on a limited number of heuristic principles which reduce the
complex tasks of assessing probabilities and predicting values to simpler
judgmental operations.’122 Cass Sunstein has in turn applied this work
on heuristics to the legal and political domain, examining social cas-
cades and group polarization.123 Some of these cognitive processes may
be helpful in understanding the traction of the freedom-of-expression
claims in the Bill C-16 controversy. The availability heuristic is a mental
shortcut in which people make judgments based on information that
quickly and readily comes to mind.124 It is a heuristic that ‘can produce
substantial distortions whenever certain alternatives are easier to imagine
122 Amos Tversky & Daniel Kahneman, ‘Judgment under Uncertainty: Heuristics and
Biases’ (1974) 185:4157 Science 1124 at 1124 [Tversky & Kahneman, ‘Judgment
under Uncertainty’]. See also Daniel Kahneman, Paul Slovic, & Amos Tversky, eds,
Judgment under Uncertainty: Heuristics and Biases (Cambridge, UK: Cambridge Univer-
sity Press, 1982).
123 Cass R Sunstein, ‘Moral Heuristics’ (2005) 28:4 Behav & Brain 531 [Sunstein, ‘Moral
Heuristics’]; Cass R Sunstein, On Rumours: How Falsehoods Spread, Why We Believe Them,
and What Can Be Done (New Jersey: Princeton University Press, 2014) [Sunstein, On
Rumours]; Cass R Sunstein, Going to Extremes: How Like Minds Unite and Divide (Oxford:
Oxford University Press, 2009) [Sunstein, Going to Extremes].
124 See Tversky & Kahneman, ‘Judgment under Uncertainty,’ supra note 122 at 1127:
‘There are situations in which people assess the frequency of a class or the probability
of an event by the ease with which instances or occurrences can be brought to mind.
For example, one may assess the risk of heart attack among middle-aged people by re-
calling such occurrences among one’s acquaintances. . . . Availability is a useful clue
for assessing frequency or probability, because instances of large classes are usually
reached better and faster than instances of less frequent classes.’

than others.’125 The availability of heuristics can in turn feed into an avail-
ability cascade. As Kuran and Sunstein explain, ‘[a]n availability cascade is
a self-reinforcing process of collective belief formation by which an ex-
pressed perception triggers a chain reaction that gives the perception in-
creasing plausibility through its rising availability in public discourse.’126
Sunstein has explored how these availability and social cascades can
quickly fuel rumours and misinformation.127 Just as people process infor-
mation based on their own readily available information, so too do they
process it based on the frequency of hearing it from those around them.
This availability cascade is coupled with an anchoring heuristic, whereby
the first information that individuals hear becomes the base for assessing
subsequent information.128 As a result, ‘it can be extremely hard to dis-
lodge what people think, even by presenting them with the facts.’129
Sunstein also explores the role that group polarization plays in spread-
ing erroneous information. Group polarization is the process identified
by cognitive and social psychologists in which deliberation within groups
of like-minded individuals produces more extreme views: ‘After delibera-
tion, people are likely to move toward a more extreme point in the direc-
tion to which the groups members were originally inclined.’130 Together,
social cascades and group polarization effectively spread biased and misin-
formation broadly, information that is then difficult to dislodge even with
facts to the contrary.
The Bill C-16 controversy around freedom of expression and gender
pronouns exemplifies these processes. In terms of the availability heuris-
tic and cascades, Peterson’s claims were assessed by many people against
a backdrop of what they already knew about free speech and political
correctness run amuck. His claims fit with their pre-existing beliefs. The
claims were then repeated broadly, creating an informational cascade.
As more people heard and repeated the claim, the more true it became
to those with a confirmation bias in the first place. Mainstream media
picked up and distributed the message. Even though some of the media
coverage included the counterclaim, the groups predisposed to believ-
ing these claims saw Peterson in the mainstream media. Given the dis-
torting effect of group polarization and the tendency to ignore evidence
that contradicts pre-existing beliefs, those who were predisposed to
125 Timur Kuran & Cass R Sunstein, ‘Availability Cascades and Risk Regulation’ (1999)
51:4 Stan L Rev 683 at 706 [Kuran & Sunstein, ‘Availability Cascades’].
126 Ibid at 683.
127 Sunstein, On Rumours, supra note 123.
128 Tversky & Kahneman, ‘Judgment under Uncertainty,’ supra note 122.
129 Sunstein, On Rumours, supra note 123 at 9.
130 Sunstein, Going to Extremes, supra note 123 at 40.

believe the claims about political correctness and freedom of expression

saw their views confirmed in the mainstream media, dismissing claims to
the contrary. All the while, the message was amplified on social media,
YouTube, and other Internet sites. Following the dynamic of group
polarization, the more that individuals discussed the issue with other
like-minded individuals, the more embedded and extreme their views
became, and the more resistant they ended up becoming to claims that
challenged those views.
Sunstein and others have also considered the ways in which affect
plays into these cognitive processes.131 In particular, he has explored the
effect of moral indignation and outrage on processing and assimilating
information, including the emotions of anger, disgust, and contempt.
Drawing on the work of Paul Slavic, among others, on the outrage heur-
istic, Sunstein looks at how indignant individuals who deliberate with
one another end up becoming more indignant.132 The idea of an out-
rage heuristic, based in anger and disgust, may also be helpful in consid-
ering the intensity of the Bill C-16 controversy and the traction of the
specious claims. Lunny has demonstrated the ways in which disgust was
at play in the previous trans rights debates, particularly in relation to
bathrooms.133 In the Bill C-16 debate, the freedom-of-expression claim
decentred the bathroom claim. I have suggested that the freedom-of-
expression claim provided a more constitutionally legitimate discourse
to oppose trans rights that was not predicated on such an obvious trans-
phobia. However, there is a way in which the traction of the freedom-of-
expression claim may be similarly linked to disgust.
The opponents to Bill C-16 were deeply angered by political correct-
ness. But, in some of the reactions, their disgust was also readily appar-
ent. While some reverted to blatantly transphobic discourses, much of
the outrage was directed to the non-binary claims – that is, to the chal-
lenge that non-binary individuals present to gender and sexuality bin-
aries. Peterson explicitly denied the existence of non-binary identities.
He and others mocked not only the pronouns but also the very claim to
not identify with the gender binary. The claim was sometimes based in
explicitly constitutional discourse of freedom of expression. But it also
veered into mockery of trans and non-binary individuals. Peterson
131 See Cass R Sunstein, ‘Some Effects of Moral Indignation on Law’ (2008) 33 Vt L Rev
405; Paul Slovic, ‘The Affect Heuristic’ in Daniel Kahneman, Paul Slovic, & Amos
Tversky, eds, Judgment under Uncertainty: Heuristics and Biases (Cambridge, UK: Cam-
bridge University Press, 1982); Sunstein, ‘Moral Heuristics,’ supra note 123.
132 Paul Slovic, Baruch Fischhoff, & Sarah Lichtenstein, ‘Regulation of Risk: A Psychologi-
cal Perspective’ in Roger Noll, ed, Regulatory Policy and the Social Sciences (Berkeley:
University of California Press, 1985) 241.
133 Lunny, Debating Hate Crime, supra note 12.

tweeted about ‘otherkins’ (people who identify as non-humans) and

trans-abled (people who identify as disabled by choice) as akin to the
claims of trans and non-binary individuals. Senator Plett repeatedly
spoke about an adult individual who identified as a seven-year-young
girl,134 and he questioned whether the legislation would not also apply
to those who identify as trans-racial or trans-abled.135 The comments
played into the idea not only of the perceived absurdity of the claims to
non-gender identity but also of an underlying outrage. The imagery was
often disturbing, seemingly intended to invoke a level of disgust.
Free speech controversies are not uncommon, and the cognitive pro-
cesses of availability cascades and group polarization help to explain
how the Bill C-16 freedom-of-expression claim took off. There was a fer-
tile terrain of belief of anger around political correctness, censorship,
and law. However, it is important to keep the gender-identity and
gender-expression dimension of this particular controversy in sharp relief.
The controversy was about speech, but it was not just about speech; it was
also about a fundamental challenge to gender binaries and gender roles.
It is here that transphobia and transantagonism needs to be interrogated
as being at the root of the very cognitive processes through which people
come to believe certain claims to be true.136
A second factor that may help explain the traction of the freedom-of-
expression oppositional discourse to Bill C-16 lies in authority studies,
particularly in the manufactured authority of Jordan Peterson. Sarah
Sorial has explored the idea of manufactured authority in relation to
hate speech claims, building on the insights of expertise studies, particu-
larly the studies of Jean Goodwin.137 Goodwin’s work has explored ap-
peals to authority in making truth claims and the ways in which expertise
is itself constructed.138 ‘Believe this,’ an expert says, ‘because I say so.”139
According to Goodwin,
134 Debates of the Senate, 42nd Parl, 1st Sess, Vol 150, Issue 101 (2 March 2017).
135 At the Senate Committee hearing, Senator Plett asked: ‘Do you believe that people
can identify as another race, another age, as trans abled? Do you believe that these in-
dividuals are as valid as those identifying another gender?’ Proceedings of the Standing
Committe, supra note 77.
136 See Florence Ashley, ‘Don’t Be So Hateful : The Insufficiency of Anti-Discrimination
and Hate Crime Laws in Improving Trans Well-Being’ (2018) 68:1 UTLJ 1.
137 Sarah Sorial, ‘Free Speech, Hate Speech and the Problem of (Manufactured) Author-
ity’ (2014) 29:1 Can J L & Soc 59 [Sorial, ‘Free Speech’].
138 Jean Goodwin, ‘Accounting for the Appeal to the Authority of Experts’ (2011) 25:3
Argumentation 285 [Goodwin, ‘Accounting’].
139 Sorial, ‘Free Speech,’ supra note 137 at 72, citing Goodwin, ‘Accounting,’ supra note
138 at 292.

to actualize such an appeal, the expert must therefore make apparent to his
audience of citizens who he is, and that he says so. The first task requires the
expert to show that he is indeed an expert by offering his audience suitable to-
kens of expertise. This means that it is up to him to make available the sorts of
signs that citizens can use to assess him: experiences, credentials, education, rec-
ognition and so on. The second task requires the expert to explicitly state his
views as an expert on some matter of concern to his fellow citizens.140
Sorial then considers the ways in which the claim to expertise is not
always legitimate but, rather, ‘manufactured’:
Speakers can use the tropes and evidence of expertise or authority to give legiti-
macy or credibility to their views. . . . Manufactured authority occurs in those
cases where individuals may not have the kind of institutional support outlined
above, or other legitimate supporting evidence of expertise, but are able to use
the tropes or markers of authority and expertise to make it seem as though they
do.141
While Sorial is referring specifically to holocaust deniers and the particu-
lar ways in which they manufacture facts and authority, a similar process
can be seen at work in relation to Peterson’s claims. Peterson is repre-
sented as an expert because he is a clinical psychologist and tenured pro-
fessor of psychology at the University of Toronto. His area of expertise is
the psychology of religious and ideological belief. Peterson is indeed an
expert. Some of his recent work has explored the relationship between
personality and political orientation.142 But, through the debates, his
actual area of expertise was converted into more general expertise. His
lack of legal expertise is entirely obscured. So too is his lack of expertise
on the study of gender and sexuality. It is a form of manufactured
authority where the absence of real expertise is refocused through the
tropes of expertise and authority. ‘I have studied this’; ‘[t]here is no evi-
dence for that’ are repeated through his videos, lectures, and interviews.
Peterson’s actual area of expertise is transferred, with authority, to areas
beyond his expertise, but the authority nonetheless gives credence to
the truth claims.
140 Goodwin, ‘Accounting,’ supra note 138 at 292, as cited by Sorial, ‘Free Speech,’ supra
note 137 (emphasis in original).
141 Sorial, ‘Free Speech,’ supra note 137 at 72.
142 See e.g. Jacob B Hirsh, Megan D Walberg, & Jordan B Peterson ‘Spiritual Liberals and
Religious Conservatives’ (2013) 4 Social Psychology and Personality Science 14.

VI Conclusion
Bill C-16 provides a cautionary tale of the traction of specious claims in a

post-truth era. Despite the absence of any substantive legal claim, the
idea of freedom of expression under attack took off. Freedom of expres-
sion provided a constitutionally principled oppositional discourse to the
protection of trans rights by feeding into rising anxieties about political
correctness, censorship, human rights commissions, and universities. It
is beyond the scope of this article to delve into the validity of the claims
about censoriousness and the politics of offence. There may indeed be
more than a kernel of truth to some of the claims: that contemporary
politics – right and left alike – appeal to a politics of outrage and
offence.143 But, in the context of Bill C-16, these themes were deployed
to support an entirely specious legal argument.
Peterson was constituted as an authority and was able to successfully
frame an oppositional discourse in the absence of legitimate legal claims.
It is worth noting that Peterson’s expertise was significant; it was not sim-
ply a case of a populist rise against science and fact. Rather, Peterson
repeatedly situated his claims within his expertise and within alleged sci-
entific literature. His expertise was in turn extended to areas where he
had none; where the ‘facts’ he asserted were anything but. It is an inter-
esting twist on the idea of post-truth politics: the controversy over Bill
C-16 was fought out in the rhetoric of science and truth claims, while
supporting claims based in neither. However, the rhetoric of freedom of
expression under attack by human rights commissions and universities,
amplified through mainstream and conservative media, created the per-
fect storm. Freedom of expression provided those opposed to trans
rights with a legitimating constitutional discourse – a discourse that both
further pathologized trans and non-binary people, this time as the
embodiment of the threat to freedom of expression, while allowing op-
ponents plausible deniability that they were discriminating against trans
and non-binary Canadians.
143 Ira Wells, ‘The Age of Offence,’ Literary Review of Canada (April 2017), online: Review
Canada <http://reviewcanada.ca/magazine/2017/04/the-age-of-offence/>. Sarah
Shulman, Conflict Is Not Abuse: Overstating Harm, Community Responsibility and the Duty of
Repair (Vancouver: Arsenal Press, 2016).

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Gender identity, gender pronouns, and freedom of expression:

Bill C-16 and the traction of specious legal claims

University of Toronto Law Journal, Volume 68, Number 1, Winter 2018,

Published by University of Toronto Press

For additional information about this article

Keywords: freedom of expression, gender expression, gender identity,

* FRSC, Professor of Law, University of Toronto, Toronto, Canada

(Winter 2018) 68 UTLJ © UNIVERSITY OF TORONTO PRESS DOI: 10.3138/utlj.2017-0073

oppose these protections; the pervasive nature of discrimination against

I Protecting trans legal rights in Canada

2 RSC 1985, c H-6 [CHRA].

(Winter 2018) 68 UTLJ © UNIVERSITY OF TORONTO PRESS DOI: 10.3138/utlj.2017-0073

Labrador followed suit in 2013. In 2014, Saskatchewan made provisions

(Winter 2018) 68 UTLJ © UNIVERSITY OF TORONTO PRESS DOI: 10.3138/utlj.2017-0073

what would emerge as a pattern in the Senate, it died on the order

(Winter 2018) 68 UTLJ © UNIVERSITY OF TORONTO PRESS DOI: 10.3138/utlj.2017-0073

added ‘gender identity or expression’ to the list of prohibited grounds

(Winter 2018) 68 UTLJ © UNIVERSITY OF TORONTO PRESS DOI: 10.3138/utlj.2017-0073

already includes ‘race, national or ethnic origin, language, colour, religion,

II The freedom of expression opposition

Social conservatives have long opposed the protection of trans rights

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(Winter 2018) 68 UTLJ © UNIVERSITY OF TORONTO PRESS DOI: 10.3138/utlj.2017-0073

III The rebuttal: neither criminalizing pronoun misuse nor unconstitutional

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A BILL C-16 DOES NOT CRIMINALIZE THE MISUSE OF PRONOUNS

University of Toronto <http://sds.utoronto.ca/blog/bill-c-16-no-its-not-about-

(Winter 2018) 68 UTLJ © UNIVERSITY OF TORONTO PRESS DOI: 10.3138/utlj.2017-0073

might be evidence that the crime was motivated by bias, prejudice, or

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that carried a probable risk of violence toward a trans or gender non-

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B GENDER PRONOUNS AND THE CHRA

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by the Ontario Human Rights Commission.31 The policies of the Ontario

31 Ontario Human Rights Commission (OHRC), ‘Policy on Preventing Discrimination

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(Winter 2018) 68 UTLJ © UNIVERSITY OF TORONTO PRESS DOI: 10.3138/utlj.2017-0073

However, in the speciﬁc context of human rights tribunals and non-

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2 unprecedented compelled speech

3 violation of charter rights to freedom of expression

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50 Keegstra, supra note 27.

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56 Whatcott, supra note 28.

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freedom of expression would be treated any differently by the Court. In

IV Shifting oppositional discourses

Notwithstanding the dubious nature of the legal claim, the argument

59 Lunny, Debating Hate Crime, supra note 12 at 106.

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concern that it may prevent discussion of ‘public policy issues such

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the government, Sean Casey responded to these concerns, noting that

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expression. Senator Marc Gold, speaking against the amendment, exten-

(Winter 2018) 68 UTLJ © UNIVERSITY OF TORONTO PRESS DOI: 10.3138/utlj.2017-0073

The Federal Marriage Amendment failed. But the opposition to same-