THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, May 17, 2017
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, met this day at 4:15 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
The Chair: Good afternoon and welcome colleagues, invited guests and members of the general public who are following today’s proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today, we continue our consideration of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, with this our last day of hearings on the bill. We will move to clause-by-clause consideration tomorrow.
With us today for the first hour are Jordan B. Peterson, Professor, Psychology Department, University of Toronto; and from the D. Jared Brown Professional Corporation, D. Jared Brown, Lead Counsel.
Thank you, gentlemen, for being here. You both have up to five minutes for opening statements. I believe you will lead off, professor. The floor is yours.
Jordan B. Peterson, Professor, Psychology Department, University of Toronto, as an individual: I think the first thing I’d like to bring up is that it’s not obvious, when considering a matter of this sort, what level of analysis is appropriate. If you’re reading any given document, you can look at the words or phrases or sentences or the complete document, or you can look at the broader context within which it is likely to be interpreted.
When I first encountered Bill C-16 and its surrounding policies, it seemed to me that the appropriate level of analysis was to look at the context of interpretation surrounding the bill, which is what I did when I scoured the Ontario Human Rights Commission web pages and examined its policies. I did that because at that point, the Department of Justice had clearly indicated on their website, in a link that was later taken down, that Bill C-16 would be interpreted within the policy precedents already established by the Ontario Human Rights Commission. So when I looked on the website, I thought there were broader issues at stake here, and I tried to outline some of those broader issues.
You may or may not know that I made some videos criticizing Bill C-16 and a number of the policies surrounding it. I think the most egregious elements of the policies are that it requires compelled speech. The Ontario Human Rights Commission explicitly states that refusing to refer to a person by their self-identified name and proper personal pronoun, which are the pronouns I was objecting to, can be interpreted as harassment. That’s explicitly defined in the relevant policies. I think that’s appalling, first of all, because there hasn’t been a piece of legislation that requires Canadians to utter a particular form of address that has particular ideological implications before, and I think it’s a line we shouldn’t cross.
The definition of identity that’s enshrined in the surrounding policies is ill-defined, poorly thought through and also incorrect. It’s incorrect in that identity is not and will never be something that people define subjectively because your identity is something you actually have to act out in the world as a set of procedural tools, which most people learn — and I’m being technical about this — between the ages of two and four. It’s a fundamental human reality. It’s well recognized by the relevant, say, developmental psychological authorities. The idea that identity is something you define purely subjectively is an idea without status as far as I’m concerned.
I also think it’s unbelievably dangerous for us to move towards representing a social constructionist view of identity in our legal system. The social constructionist view insists that human identity is nothing but a consequence of socialization, and there’s an inordinate amount of scientific evidence suggesting that that happens to not be the case. So the reason that this is being instantiated into law is because the people who are promoting that sort of perspective, or at least in part because the people promoting that sort of perspective, know perfectly well they’ve lost the battle completely on scientific grounds.
It’s implicit in the policies of the Ontario Human Rights Commission that sexual identity, biological sex, gender identity, gender expression, sexual proclivity all vary independently, and that’s simply not the case. It’s not the case scientifically. It’s not the case factually, and it’s certainly not something that should be increasingly taught to people in high schools, elementary schools and junior high schools, which it is. It is being taught. I included this cartoon character that I find particularly reprehensible, aimed obviously as it is at children somewhere around the age of seven, that contains within it the implicit claims, as a consequence of its graphic mode of expression, that these elements of identity are, first, canonical and, second, independent. Neither of those happen to be the case.
I think that the inclusion of gender expression in the bill is something extraordinarily peculiar, given that gender expression is not a group and that, according to the Ontario Human Rights Commission, it deals with things as mundane as behaviour and outward appearance, such as dress, hair, makeup, body language and voice, which now, as far as I can tell, open people to charges of hate crime under Bill C-16 if they dare to criticize the manner of someone’s dress, which seems to me to be an entirely voluntary issue.
I think that the Ontario Human Rights Commission’s attitude towards vicarious liability is designed specifically to be punitive in that it makes employers responsible for harassment or discrimination, including the failure to use preferred pronouns.
The Chair: Please come to a conclusion.
Mr. Peterson: They have vicarious liability for that, whether or not they know it’s happening and whether or not the harassment was intended or unintended. So I’ll stop with that.
The Chair: Thank you. Mr. Brown.
D. Jared Brown, Lead Counsel, D. Jared Brown Professional Corporation: I’m a litigator in Toronto. I act in all manner of commercial and employment disputes. I’m not an academic. I live with my clients in the land of legal reality and how the law actually works.
About two years ago, I began to see claims of discrimination included in every employment-related court claim. My phone now rings weekly with Human Rights Tribunal matters. It has become a reality for employers across Canada.
In August of last year, I became aware of Dr. Jordan Peterson. He was discussing what he saw as a problematic law, poorly written. That’s when I observed the oddest thing happening; lawyers, academic lawyers, important people, began to say that he had the legal stuff wrong. “Nothing unusual about this bill.” They also said, “You don’t get to go to jail if you breach a Human Rights Tribunal order.” What was happening is they weren’t defending the law but downplaying its effects.
As a practising lawyer, any time a lawyer, and particularly an academic, says, “Look away; there’s nothing to see here,” it gets my antenna way up. So I did some research, which can be found in the brief that I filed in advance of today. It sets out the path to prison on this. I knew, as a commercial litigator, that anyone can end up in jail if you breach a tribunal order. It is a simple, civil, contempt-of-court process. People go to jail for this.
But what about the freedom of expression issue? It’s a foundational issue. We all know that section 2(b) of the Charter sets out that everybody has the fundamental freedoms of thought, belief, opinion and expression. We all know that the government has successfully restricted freedom of expression over the years. But what if, rather than restricting what you can’t say, the government actually mandated what you must say? In other words, instead of legislating that you cannot defame someone, for instance, the government says, “When you speak about a particular subject, let’s say gender, you must use this government-approved set of words and theories.”
The American jurisprudence clearly defines this as unconstitutional compelled speech. In Canada, the Supreme Court has enunciated the principle that anything that forces someone to express opinions that are not their own is a penalty that is totalitarian and, as such, alien to the tradition of free nations like Canada.
How does Bill C-16 get us to compelled speech? The Minister of Justice has summarized Bill C-16 as: The enactment amends the Canadian Human Rights Act to add gender identity and expression to the list of prohibited grounds of discrimination. The Department of Justice website used to say that we must look to the Ontario Human Rights Commission policies for definitions on these terms.
Ontario’s policies on gender identity and gender expression are set out in my brief. They state that gender-based harassment can involve refusing to refer to a person by their self-identified name and proper personal pronoun. Refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity will likely be discrimination. The law is otherwise unsettled as to whether someone can insist on any one gender-neutral pronoun in particular.
If the harasser didn’t know or didn’t intend to harass, it’s still harassment. Why is this important? In Ontario, the Human Rights Commission is a policy-development creature of the legislature. It creates the policies that interpret the code. But what is most important is that the tribunal must follow these policies. It is bound by them. So the commission creates the law on pronouns. In Ontario, the policies on pronouns were introduced into the legal framework after the law had left the legislature.
Federally, the same process will be followed, as the Department of Justice had said so. A similar guideline will be developed. As with the Ontario policies, federal guidelines must be followed by the federal tribunal. The guidelines will mandate pronouns. This will happen after the bill leaves the Senate. Mandating use of pronouns requires one to use words that are not their own that imply a belief in or agreement with a certain theory on gender. If you try to disavow that theory, you can be brought before the Human Rights Commission for misgendering or potentially find yourself guilty of a hate crime. To sum up, on the subject of gender, we’re going to have government-mandated speech.
In opining on the constitutionality of the proposed bill, the Department of Justice said on its website, “Look, there’s a variation of this bill that already exists in most of the provinces.” I don’t believe that’s a robust argument in favour of constitutionality. I would refer you to the comments of the now Chief Justice McLachlin of the Supreme Court in the decision of Taylor. It’s in my brief.
The chilling effect of leaving over-broad provisions on the books cannot be ignored. While the chilling effect of human rights legislation is likely to be less significant than that of a criminal prohibition, the vagueness of the law means it may well deter more conduct than can legitimately be targeted. As a lawyer on the ground, I worry about poorly drafted law and its impact on my clients. As a Canadian, I worry about Parliament tacitly authorizing compelled speech.
The brief I provided to the committee contains a comprehensive legal opinion I published back in December on Bill C-16. There’s a table that shows how the federal human rights regime mirrors the Ontario system in terms of enforcement of policies and guidelines.
The Chair: You'll have to wrap up, sir.
Mr. Brown: Finally, it includes the case law that underpins the opinion.
The Chair: Thank you both. We’ll begin questions, beginning with Deputy Chair Senator Baker.
Senator Baker: Thank you to the witnesses for their presentations.
As the witnesses know, nine provinces in Canada have the provision in their laws, including Ontario. Also, the word “expression,” as I recall, appears in four or five provinces. So what you are arguing is against what we already have in law.
As to your reference to the criminality, to the sections of the Criminal Code, at our last meeting, Senator Joyal correctly pointed out that sections 318 and 319 start off with genocide, under the heading “genocide.” The next heading is “public incitement likely to lead to a breach of the peace.” You know what a breach of the peace is, Mr. Brown — willful promotion of hatred.
Then there are defences listed, as you know, in that Criminal Code provision. There are several defences, such as if you honestly believe in what you said. The defences are extensive in the Criminal Code. They work well for Canada.
What do you have to say about the facts of what’s presently in the Criminal Code and your reflection that somehow — the genocide heading, the heading on public incitement, on wilful promotion of hatred — these provisions should not be included under those headings?
Mr. Brown: I think I have to be clear. My presentation relates to the amendment to the human rights code.
Senator Baker: And not to the Criminal Code?
Mr. Brown: That is, in fact, how one like Dr. Peterson may in fact find themselves on the wrong side of jail. If you’ve reviewed the publication and the opinion, I say that simply by breaching the proposed amendment to the Human Rights Act, and particularly with somebody who is deliberately doing so, for instance, somebody saying, “I’m not going to use those words,” that person, if they are dragged before the tribunal —
Senator Baker: The Ontario tribunal.
Mr. Brown: Or the federal tribunal. I’ve indicated to you already that the Department of Justice has said they’re going to pass the same guideline on pronouns. What I’m suggesting to you is that if somebody says, “I’m not going to use those words,” and is brought before the federal tribunal, and the tribunal then delivers an order for a payment of a fine, and, alternatively, a non-monetary remedy, such as a cease and desist order or an order to compel them to do something, and that person who is brought before the tribunal says, “I’m not doing that,” they will find themselves in contempt of court, and prison is the likely outcome of that process until they purge the contempt. That’s what I’m suggesting. I’m not advocating genocide, I guess let’s just say that. My presentation here is restricted to what I see as the pronoun policy issue and the compelled speech issue.
Senator Baker: So it covers the provincial legislation that you strongly disagree with, that we’ve had in place in the provinces for decades, in some cases?
Mr. Brown: It is the policies that were enacted after it left the legislature and which will be enacted after this bill leaves this committee.
Mr. Peterson: I would like to add to that the fact that once I made the video stating that I wouldn’t use the zie and zir pronouns, for example, which I regard as part of an ideological linguistic vanguard, the university lawyers, after carefully considering what I said, sent me two letters to cease and desist in my public utterances because they believed that not only was I violating the university’s standards of conduct but also violating the relevant provisions of the Ontario Human Rights Commission. Therefore, as far I could tell, that vindicated the statement I made when I made the video to begin with, that the act of making the video itself was probably already illegal. And they didn’t do that lightly.
Senator Baker: Under provincial law.
Mr. Peterson: Yes.
Senator Plett: Thank you, gentlemen, both of you, for being here.
I have two questions, one for Dr. Peterson right at the get-go and then one for the two of you. Hopefully, the chair will indulge me.
During deliberations of this bill, we keep hearing the term “respect” thrown around. Respect is indeed critical in debates of legislation as sensitive as this, and there are a lot of people here who need to be reminded that respect works both ways, including people at this committee. Senator Baker has already referred to comments as genocide. I don’t think anybody here is promoting genocide.
However, Dr. Peterson, can you comment on the notion of respect where some of your critics ask why you cannot just respect your students and use the gender-neutral pronouns? How do you respond to that?
Mr. Peterson: First, I would have to be convinced that doing so would do more good than harm, and I don’t believe that. I think I’m actually in a reasonable position to justify my claim. I think the danger intrinsic to the law far outweighs whatever potential benefit it might produce, especially given that there’s no hard evidence whatsoever for any benefit.
I would also like to point out that the people who are promoting this legislation claim to be acting on behalf, say, of the transgendered community, but they were not elected nor appointed to act as such representatives and are doing it on their own say-so. I’ve received many letters, at least 30 now, from transgendered individuals indicating they are not in accordance with the claims of these so-called representatives to be representing or with the intent of the legislation, which has actually made them more visible rather than less visible, and the less visible is what they had preferred.
With regard to respect, you don’t meet people, generally speaking, in a mutual display of respect. You generally meet people in a mutual display of alert neutrality, which is the appropriate way to begin an interaction with someone, because respect is something you earn as a consequence of reciprocal interactions that are dependent on something like reputation, which is also a consequence of repeated interactions.
I think the notion that addressing someone by their self-defined self-identity is necessarily an indication of basic human respect for them is an entirely spurious argument, especially given there’s no evidence that moving the language in a compelled manner in this direction will have any beneficial effect. We’re supposed to assume that just because, hypothetically, the intent is positive, that the outcome will be positive, and any social scientist worth his or her salt knows perfectly well that that’s rarely the case.
Senator Plett: Dr. Brown, you’ve talked about non-monetary orders that could include sanctions, like orders to undertake sensitivity and anti-bias training. I would like one or both of you to comment on whether you could explain why an individual may have a strong objection to undertaking such training. Mr. Brown, could you let the committee know how serious the sanction could be, if you refuse to undertake such an order, specifically at the federal level? Why would people have an objection to taking such training?
Mr. Brown: I will let Dr. Peterson answer why he or someone like him might have an objection to undertaking that kind of training, and then I’ll deal, obviously, once again with the severity of that decision if it gets before the tribunal.
Mr. Peterson: I have a profound objection to undergoing such training. In fact, I would flatly refuse under all conditions to undergo it, and there are multiple reasons for that. The first reason is that the science surrounding the so-called charge of implicit bias that’s associated with the perception is by no means settled, to such a degree that one of the three people who designed the most commonly used measure, which is the implicit association test, has detached himself from the other two researchers on the grounds that the use of the test has far transcended its scientific reliability and validity. It’s nowhere near valid or reliable enough to be used in the manner it is. Even the more pro-IAT researchers who developed the test have admitted to that publicly, even though they haven’t stressed it nearly to the degree they should.
First of all, the science is not settled and is being used absolutely inappropriately, and I can say that as a clinician and as a psychometrician. I know the criteria for using a test for essentially diagnostic purposes, and the IAT doesn’t come close to what’s necessary.
The next issue is: Where’s the evidence that anti unconscious bias training works? There’s no evidence, and what little evidence there is suggests it actually has the opposite effect because people don’t like being brought in front of a re-education committee and having their fundamental perceptions — not even their thoughts but perceptions themselves — altered by collective fiat. It's an unbelievable —
The Chair: We have a very engaged committee. Concise questions and concise responses would be helpful.
Senator Pratte: Thank you for being here. I want to quote briefly from a document from the Ontario Human Rights Commission. It says:
. . . Some people may not know how to determine what pronoun to use. Others may feel uncomfortable using gender-neutral pronouns. Generally, when in doubt, ask a person how they wish to be addressed. Use “they” if you don’t know which pronoun is preferred. Simply referring to the person by their chosen name is always a respectful approach.
So you can use a pronoun, or you can use their chosen name.
If someone chooses to change his name from Paul to Peter, surely you would use Peter because it’s a matter of simple politeness and respect. If the same person chooses to change their name from Paul to Paula, why wouldn’t you use the name Paula simply as a matter of respect? What’s the difference here?
Mr. Brown: I’ll speak about the legal issue there, which is you’re now introducing the full force of the law behind the requirement to use — and I’m dealing, obviously, with the pronoun issue. In terms of not addressing somebody by their legally registered name, for instance, I don’t think that’s where we’re running into trouble here. I think the issue becomes that if you don’t address somebody by the pronoun that they self-identify by, as I’ve read out to you, the fact that the full force of the law will be behind that person, that’s what I’m finding is troubling in the legislation.
Senator Pratte: But the Ontario Human Rights Commission gives people the alternative not to use pronouns and use the person’s chosen name, which is always a respectful approach, so pronouns are not necessary or not mandatory. You can always choose the person’s chosen name as a respectful approach. Therefore, I argue —
Mr. Brown: I’m not aware that there is a piece of legislation that compels you to use my proper name. In other words, once again, it’s the fact that the full force of the law will be behind it when we’re dealing with the group being identified in the legislation. So for instance, if I were not to call you by your chosen name, I’m not sure you would enjoy the full force of the law behind you as a result of that. That’s what I’m suggesting to you is the difference here.
Senator Pratte: I’m arguing, sir, that you always base whatever you say on what the Ontario Human Rights Commission is saying. I’m quoting from the Ontario Human Rights Commission document. They are saying they’re not mandating pronouns. You can always use the person’s chosen name as a respectful approach.
Mr. Brown: I respectfully disagree.
Mr. Peterson: I would say that’s actually an indication of just how poorly the policy documents are written because I can quote this one, which is also from the Ontario Human Rights Commission website that says “refusing to refer to a person by their self-identified name and proper personal pronoun” constitutes gender-based harassment.
So if the policies were written in a coherent manner and there weren’t internal contradictions, then your statement would be a reasonable objection. But since it’s not written that way — and I do believe, firmly, that’s a testament to the degree to which it is a poorly written set of policies — it’s full of internal contradictions that will be worked out very painfully within the confines of people’s private lives.
Senator Batters: Thanks very much both of you for being here.
First of all, Dr. Peterson, I want to go back to the issue of personal pronouns. Could you please tell our committee more about this issue? It’s something I was not at all familiar with prior to this bill being introduced, and in particular about the gender-neutral pronouns and your experience in pushing back against being forced to use those gender-neutral pronouns.
Mr. Peterson: I don’t think the people who initiated this legislation ever expected that there would be an absolute explosion of identities, first of all, and also of so-called personal pronouns, as there has been. I think Facebook now recognizes something like 71 separate gender identity categories, each of which in principle is associated with its own set of pronouns. So linguistically, it has become a parody. It has become linguistically unmanageable. Words can’t be introduced into the language by fiat. I can’t think of a time when that actually worked. We are not sure how words enter the common parlance, but it’s certainly not that way.So the legislation devolves into a kind of absurdity, as far as I can tell.
One of the people that I discussed this with claimed that the way that you kept track of someone’s personal pronouns was to use your cellphone as an adjunct to your communication. You wouldn’t say anything like that if you knew anything about common human nature, let’s say, and the manner in which people communicate with one another.
Senator Batters: The types of pronouns you’re talking about, so everyone is clear, because I don’t think these are common parlance, are ze and zir, and what other gender-neutral pronouns are we discussing here?
Mr. Peterson: I have a bad memory for that sort of thing. If you are interested, you can rapidly find lists of them on the Web. They have been produced by people whose essential desire is to gain linguistic control. That’s as simply as I can put it; it’s to gain linguistic control. They are not used popularly. That seems to me to be a real problem as a consequence, that you make the failure to make their use something that could carry a criminal penalty. So I just don’t understand that. I don’t understand how the government can justify imposing a criminal penalty on the use of words that no one either knows or uses. It just seems preposterous to me, but there it is.
Senator Batters: Could you please tell us more about your personal experience in pushing back against this? Many are familiar with your story, but not everyone. I just wanted to give you a little more opportunity to talk about that.
Mr. Peterson: I made three videos. We’ll talk about one of them. I made one criticizing Bill C-16 for the reasons I already described, because I went and read the policies. They made my hair stand on end, the surrounding policies. So I made a video stating essentially that and detailed out my reasons.
I’ve been following the battle of ideologies on campus for a long period of time. I suppose I have some expertise in that. There is an ideological war that is ripping the campuses apart. It’s essentially between an ideological variant that is rooted in what has come to be known as post-modernism, with a neo-Marxist base, and modernism, I would say. That’s accounting for all the turmoil on the campuses. I see this as an extension of this campus turmoil into the broader world. I really believe that is the proper level of analysis. I truly believe that.
I said that I believe that this is a vanguard issue in a kind of ideological war and that I’m not going to participate on the side of the people whose ideological stance I find unforgivable and reprehensible, especially the Marxist element of it. I announced that I wasn’t going to use these words because I don't believe they are instantiated to protect anyone’s rights. I believe the ideologues who are pushing this movement are using unsuspecting and sometimes complicit members of the so-called transgender community to push their ideological vanguard forward. I firmly believe that so I’m not participating in that.
The fact that it’s potentially illegal for me not to participate in that is something that I think is absolutely dreadful. It puts a shudder in my heart as a Canadian that we could even possibly be in a situation like that. You know, if the identity claims that are instantiated in the policy surrounding this legislation are applied, it’s going to be hell for the psychiatrists — excuse my language — and it will be very difficult for the biologists and the psychiatrists next. I think we’ll see that happening very soon.
Senator Gold: Thank you for being here. I’ve never been a practising lawyer; I was a constitutional law professor. And I’m a free speech guy, so I appreciate the importance of the issues that are being raised. I think respectfully, they were answered. The free speech issues were answered compellingly by my former colleague Brenda Cossman in testimony before this committee. I wanted to make three points.
Mr. Peterson, there are questions buried in these points. I think I heard you say that you thought that the harm to this legislation outweighs the good. But the trans community suffers harm regularly when they are discriminated against. Whatever else one might say and worry about human rights tribunals and the like, this bill addresses and would take a major step forward towards reducing harm that a particularly vulnerable community experiences.
Second, let’s see if we can zero in on where we might agree, that there is nothing in the law that criminalizes or creates an offence to criticize the notion that identity is a social construct, which you do, to criticize the way in which words come into the language. Although, modern Hebrew is an example of words coming in by fiat, and the L’Académie française does it as well. Shakespeare gave us so much of our language. But there is nothing in this bill that stands in the way of your taking a principle position against all aspects of this, including your criticisms of the activist.
The issue is the pronoun. Unless I am reading it wrong, as Senator Pratte pointed out, the Ontario Human Rights Commission policy does not say that refusing to use a person’s self-identified name or personal pronoun does constitute gender-based harassment. I may be wrong, but I believe it said that it could. I think that’s a real difference. If I turn to you and say, look, please call me “they” because that’s how I see myself now, because it’s hurtful for you to call me “sir” or “miss” or whatever it would be, but you refuse. I say, “Okay, if you’re uncomfortable with that because you’re not comfortable with that, call me Marc.” And you refuse. Were you to continue to call me by the name that I’m telling you is hurtful to me, is that not something that the law can properly address? You are knowingly hurting me.
In that respect, our courts are ultimately capable of striking a proper balance between people who slip up for whatever reason but just can’t get the words out of their mouth and those who persist in intentionally causing harm. Would you agree with my characterization of free speech as it applies to these issues?
Mr. Brown: Let me jump in just on a legal point. After Dr. Peterson posted his videos and after he rose to public consciousness, the Ontario Human Rights Commission deemed it fit to release a new policy document called “questions and answers about gender identity and pronouns.” In so doing, they said that refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity or purposely misgendering will likely be discrimination. I think it’s a little more certain than what you may have indicated in your comment.
Once again, that policy was put out after Dr. Peterson began to speak on the issue. I think that’s very telling that it was a response, if you will, to this issue that Dr. Peterson raised. I will obviously allow Dr. Peterson to go ahead with the other element of your question.
Mr. Peterson: I would say that the very idea that calling someone a term that they didn’t choose causes them such irreparable harm that legal remedies should be sought, rather than regarding it as a form of impoliteness, that legal remedies should be sought, including potential violation of the hate speech codes, is an indication of just how deeply the culture of victimization has sunk into our society.
Senator Frum: Same topic, Mr. Brown. When the Minister of Justice was before this committee, she said the following:
There is nothing within Bill C-16 that would compel somebody to have to call somebody by the pronoun “he” or “she” or otherwise.
Can you comment on her position?
Mr. Brown: I would agree with that; there is nothing in the bill. But the problem is that on the Government of Canada Department of Justice website, in their questions and answers section, which was pulled down in December — it’s at Tab 5 of my brief — it makes it very clear that the definitions of the terms “gender identity” and “gender expression” have already been given by the Ontario Human Rights Commission. The commission has provided helpful discussion and examples that can offer good practical guidance. The Canadian Human Rights Commission will provide similar guidance on the meaning of these terms in the Canadian Human Rights Act.
Now, I take that to be legislative intent. I’ll agree with you that the bill itself on its face does not seem to imply any manner of compelled speech, but when we’re tying it so deliberately with this expectation, that’s where I think you get into some trouble.
Senator Frum: You spoke about the chilling effects of overly broad legislation. I am wondering if you consider the terms “gender identity” and “gender expression” to be equally broad, or do you consider one broader than the other?
Mr. Brown: I think they are overly broad definitions, and I think the only thing I can offer as a lawyer and a litigator is that the courts don’t like over-broad terms. I would refer you to the decision of Lund v. Boisson of the Alberta Court of Appeal. In that case, the Court of Appeal said:
The objective of statutory interpretation is to discern the legislative intent from the language of the legislation, if possible, and to give effect to such intent. This objective becomes difficult to attain when there is conflict, imprecision, or a lack of clarity in the legislation. Of particular concern in the area of human rights law is that a lack of clarity will cast a chill on the exercise of the fundamental freedoms, such as freedom of expression and religion.
So while I personally believe that the terms are not properly or clearly defined and somewhat ambiguous, the courts don’t like that type of legislation either.
Mr. Peterson: To add two things, with regard to the chill, it’s already the case — and I have seen this among my own students when they are teaching personality, which is what I teach, which also involves assessment of gender differences between men and women — that the proclivity now is for advanced Ph.D. students to avoid any such discussions in their classrooms because the potential cost of transgressing against an unknown norm, let’s say, is so high that it’s just easier to teach other things. So I have seen that clearly and with multiple people.
I would also say that it’s no trivial matter that the Department of Justice’s link to the Ontario Human Rights Commission and their statements about how this legislation was going to be interpreted mysteriously disappeared in the middle of December. Of all the things that have happened in relationship to this and that I’ve been studying, I think that was the most chilling. It was the smoking pistol, because the issue is what is the right level of analysis? Are you just supposed to look at the legislation? Well, since the justice department said, “No, you’re supposed to look at the surrounding policies,” that’s what I did, and that’s what I based my case on. Then all of a sudden the link tying those two things together just vanished and people had to go into the Internet archives to fish it back out so that it could remain part of the public record. I think that’s absolutely scandalous.
Senator Plett: Hear, hear.
Senator Omidvar: Thank you both for being here. I was trying to take notes, but I think I got this right, Mr. Peterson, that you talked about this bill as being an expression of the vanguard of ideology. Am right in my understanding?
Mr. Peterson: I was thinking more about the policies that surrounded it, but yes.
Senator Omidvar: So I’m trying to square what you as a party of one are saying with published documents from the Canadian Psychological Association, the American Psychological Association, the Canadian Medical Association, the American Psychiatric Association, the Canadian Psychiatric Association and the United Nations human rights experts. These are not parties of one; they are associated. They are all, I imagine, lots of psychologists, being members of the Canadian Psychological Association and the Canadian Psychiatric Association.
How are we to square what you’re saying, which is your opinion, something you are absolutely entitled to, with what everyone is saying, plus the feelings and testimonies of the people who have suffered for over 30 years, who have been taking issues to court, these people whom we have listened to? How are we to square this?
Mr. Peterson: With regard to your second point, if the people you are listening to aren’t randomly selected from the population, then their opinions are worthless from the perspective of testimony because you don’t know if you’re dealing with a biased sample. That’s a big problem with the public consultation process that underlies this bill. You may not appreciate that, if you would like, but it’s standard practice in any polling institution or any body that is attempting to extract a genuine opinion out of a so-called community of people. If that isn’t followed, then you can’t tell if the information that you’re receiving is biased.
With regard to your first point, what exactly are all those people who aren’t thinking the same way as me saying? You said that there are a bunch of them and a bunch of groups, but you never said what they are saying precisely.
Senator Omidvar: I think our chair would rule me out of order if I proceed —
The Chair: No, you’re fine.
Senator Omidvar: — to read out what they are all saying. In general, they oppose discrimination and harassment because of gender identity and gender expression. Then there are three pages that I can share with you.
Mr. Peterson: I oppose discrimination against gender identity and gender expression. That’s not the point. The point is the specifics of the legislation that surrounds it and the insistence that people will have to use compelled speech. That’s what I’m objecting to.
I have dealt with all sorts of people in my life, people who don’t fit in in all sorts of different ways. I’m not a discriminatory person. There are 500 hours of me teaching my classrooms on tape on YouTube, and nobody has found a smoking pistol. I’m not a discriminatory individual, but I think this legislation is reprehensible, and I do not believe for a moment that it will do what it intends to do.
I also don’t think that my opinion deviates substantially from the bodies that you are describing because you haven’t provided any evidence that they say anything other than discrimination is a bad thing. I think that unreasonable discrimination is a bad thing. It’s unreasonable when people are judged for any reason other than the specific competence they bring to a given position. It’s not in anyone’s best interest that that occurs.
But I don’t think that you’ve demonstrated in the least that the opinions I’m putting forward exist in opposition to the standard practices of my particular discipline.
Senator Omidvar: Could you repeat one more time your response to Senators Gold and Pratte, that the Ontario Human Rights Commission has provided what I would say reasonable alternatives to your objection of using pronouns?
Mr. Peterson: Well, I think it has been made clear in the presentation so far that it depends on which part of the Ontario Human Rights Commission’s policies you read. That’s a big problem. One of the reasons I criticized this to begin with was because when I went through the policies, I could see that they were absolutely incoherent.
Let me give you another example. There’s an insistence in the Ontario Human Rights Commission that sexual preference is an immutable phenomenon, which indicates, at least in principle, that it’s biologically grounded. By the same token, in exactly the same policies, they presume that sexual identity, gender identity and gender expression are entirely independent. It’s like, “Sorry, guys, you can’t have both of those, because one is A and one is not A, and you can’t put those together.”
There are endless numbers of places in the policy surrounding Bill C-16 that are characterized by that kind of logical incoherency. What will it do to people who are transgendered who make the claim they were born that way at birth, which is a strong, biological claim? It indicates there’s a direct causal connection between some biological phenomenon and the expression of a particular identity. It’s actually the strongest defence that people who have non-standard sexual or gender identities have to defend their claims.
[Translation]
Senator Boisvenu: Thank you for being with us today. My question is for Professor Peterson. I am still finding my way through this bill and I am a bit confused by the positive and negative arguments raised by everyone. Some say that not having this bill could lead to suicide or depression among people who are transgendered. I am stunned by this extreme position.
Professor Peterson, you work in the field of human behaviour. To your knowledge, are there studies or statistics regarding the life-saving potential of this bill? Is it as much of a life saver as is claimed?
[English]
Mr. Peterson: In principle, we would have that information if the policies that have already been introduced by the provincial governments were assessed properly. But as far as I know, there’s been no studies indicating that the introduction of this legislation specifically has done anything to modify the unfortunate rates of suicide, depression and anxiety that are characteristic — well, you could say often of marginalized groups, but that’s a bit of an overstatement.
No, that was part of my original claim is that there’s no evidence that this sort of legal redress, let’s say, will produce any of the positive consequences intended. I believe by making the issue painfully visible, that’s one way of thinking about it, it has actually had the opposite effect.
It’s very common, and this is something that’s well known in the relevant social sciences, that just because you intend something to happen when you make a large-scale transformation doesn’t indicate in any manner that that will be the outcome. It would be lovely if things were that simple. The best social scientists always insist you build an outcome analysis into any broad-scale — what would you call it? — social intervention, because there’s a high chance it will backfire.
It’s all presupposition, and it’s based, at least in part, on the notion that the transgender community is a community and that there are voices that speak for them homogeneously and that this is what they all want and that it will work as intended. To me, looking at this from the social science perspective, there’s nothing about it that’s credible. I also don’t buy the intent.
[Translation]
Senator Dupuis: I have another question for Professor Peterson, and then I may have a question for Mr. Brown.
Professor Peterson, I am trying to understand your position. Do you see a difference between the opinions you are stating today on this issue — during a public consultation by the Senate — and the actions that you take as a university professor, that is, in a position of authority and power over a group of students?
[English]
Mr. Peterson: First of all, I don’t necessarily consider myself in a position of authority and power; I consider myself in a position of responsibility. Those aren’t the same things. I don’t agree with the way the question is formulated. I don’t understand what that has to do with my stance, if I believe that the legislation is going to do more harm than good, and if I also firmly believe, which I do, that it is more in the issue of an ideological move than something that’s designed to address the concerns that it purports to address.
I would also like to point out briefly that what should have happened when I made that video — and this is relevant to the question — maybe people paid attention to it for 10 minutes and maybe it got a newspaper article and then it disappeared. But I put my finger on something; that’s what I thought. The fact this issue hasn’t gone away in nine months — quite the contrary, it has exploded, not only in Canada but in all parts of the world — means to me that I have some evidence that my choice of level of analysis was correct, and that there’s far more going on here, so to speak, than the mere surface issue that we’re purporting to discuss.
I take exception to the notion that I’m somehow abandoning my personal responsibility to my students, which is something I believe is in fact driving what I’m doing. I believe my obligation to my students constantly is to tell them what I think and to make that as informed and careful an opinion as I can possibly master, and that’s what I do.
[Translation]
Senator Dupuis: I think you understand that, if you appear before a Senate committee, regardless of what you think of the merit of the questions, it is not up to you to ask the questions. Are we agreed on that?
Do you make a distinction between what you believe, your opinion of a bill, and the fact that the university — which pays you to teach, unless I am mistaken — considers you to be under its legal responsibility in your dealings with your students, and thus in a position of authority over them, in other words, you can give them an A for excellent or an E for poor?
[English]
The Chair: Senator, I encourage you to focus on the components of the legislation. I think that’s relevant. I’m going to move on.
Senator MacDonald: Dr. Peterson, the thing that concerns me most in this legislation is compelled speech; that’s very concerning.
This committee has heard from Meghan Murphy, who told us her opposition to this concept of gender fluidity, because she believes gender is a social construction. Dr. Gad Saad is also opposed to this legislation because of his belief in evolutionary biology.
What this shows is that with Bill C-16, we are prematurely shutting down a discussion on gender and sex that appears to be far from settled. In my opinion, when we look to the provincial definition as set out by the commissions, we are enshrining the theory of a gender spectrum into the law. Could you comment on that?
Mr. Peterson: That’s exactly what we’re doing. That might even be more dangerous, in my opinion, than the compelled speech issue, because the social constructionist view of gender isn’t another opinion; it’s just wrong. I’ll take one minute to tell you why.
Senator MacDonald: Please.
Mr. Peterson: The proposition that is instantiated in this visual, which is a good representation of the philosophy of the policies, is that there’s no causal relationship between these four dimensions of identity, and that’s palpably absurd. I mean, 99.7 per cent of people who inhabit a body with a given biological sex identify with that biological sex. They’re incredibly tightly linked.
If you can’t attribute causality to a link that’s that tight, you have to dispense with the notion of causality altogether. Of the people who identify as male or female who are also biologically male or female, the vast majority of them have the sexual preference that would go along with that and the gender identity and the gender expression.
These levels of analysis are unbelievably tightly linked, and the evidence that biological factors play a role in determining gender identity is, in a word, overwhelming. There isn’t a serious scientist alive who would dispute that. You get disputes about it, but they always stem, essentially, from the humanities. As far as I’m concerned — I’ve looked at it very carefully — those arguments are entirely ideologically driven. It’s a tenet of the ideology that identity is socially constructed, and that’s partly why it’s been instantiated into law, because there’s no way they can win the argument but they can certainly win the propaganda war, especially by foisting this sort of reprehensible advertising information on children. That’s part of the expressed intent.
Mr. Brown: I would add that trans complainants have been covered under the existing grounds of sex before the tribunals across Canada. As the Minister of Justice said, they are bringing this legislation in as a symbolic gesture. I leave it to you to question what that gesture may be, but this community has been protected under the existing grounds found in most of the human rights codes across Canada on the grounds of sex.
Senator Joyal: Mr. Brown or Mr. Peterson,Justice Wagner from the Supreme Court, in a seminar at the University of Ottawa in early March of this year, which is a couple of months ago, stated the following. He was not giving a decision from the bench, but he was expressing his views. If you allow me, I will quote him. It’s short:
When the court eventually faces a question touching on transgender identity, these two propositions will provide essential frames of reference: that identity is not fixed, but changing, and that identity is not innate, but contextual.
I read that, and I tried to understand the implication of those two binary kinds of elements. He says “the court”, so I bet that he might have spoken to colleagues or the profession, generally.
Would you have a quarrel with that kind of approach to the definition of transgender reality or do you think that it’s a proper way of approaching the issues legally? As you forcefully explained, someone, one day, might challenge the proposal, the policies and all that could stem from the enactment of such legislation. We’ll find ourselves in court one day and we will have to analyze and argue the case, at least taking into account those references that Justice Wagner mentioned not long ago. How would you react to that way of perception?
Mr. Peterson: I want to make sure I understand your question properly. When the justice said this, was he implying that the identity is not fixed but it is changing and that identity wasn’t innate and it was contextual, or was he outlining the arena within which this debate might take place?
Senator Joyal: It was not a speech on this. Essentially, it was more, if I can use an expression that Mr. Brown will understand, it was rather an obiter in a conference. The conference was about identity, but, of course, since identity is a topic of common debate in Canada, he felt that it would be helpful to put his grain of salt in the public debate by establishing how he thinks transgender identity should be defined and establish some parameters.
Mr. Peterson: Let’s assume that it is changing and contextual. Then why is conversion therapy a problem? You see, the thing is that when I started opposing this bill, people immediately assumed that I was transphobic and racist and all these other epithets that they’re perfectly willing to trot forth at a moment’s notice. There’s been a tremendous attempt to make conversion therapy for people who are gay illegal. The proposition is predicated on the idea that the sexual preference identity is not changing, nor contextual. It’s fundamental and really, what that means is that it’s grounded in something like biology. Okay, fine, let’s scrap that. Now it will be changing and contextual. Then why can’t it be changed with context?This is part of the problem with the policies, is they’re so incoherent that they will work against the people that they’re designed to protect. Now, people have a hard time believing I care about that, but the fact that I’ve been called things doesn’t mean that’s what I am.
For a lot of people who have a non-standard identity, if we can call it that, the tightest argument they have for public acceptance of that identity is that it’s powerfully constrained by biological processes that are beyond their voluntary control. So instantiate this social constructionist view of humanity and you can wave those claims goodbye because they are at complete odds with the social constructionist viewpoint. I think that’s a big mistake. I really do believe that that will backfire hard against the people who this legislation is designed to protect. If it’s mutable, changeable, only subjective and transformable on a whim, then why should anyone have any respect for it?
The Chair: Gentlemen, I will have to intervene. The hour has flown by. We all very much appreciate your appearance here today and your testimony as well. Thank you.
Joining us for our second hour: Bruce Pardy, Professor, Faculty of Law, Queen’s University; from the Justice Centre for Constitutional Freedoms, Jay Cameron, Barrister and Solicitor; from the Québec Women’s Rights Association, Michèle Sirois, President; Diane Guilbault, Vice-President; and Lyne Jubinville, Treasurer and Webmaster. I hope I’ve pronounced those names correctly.
Spokespersons have up to five minutes for an opening presentation. I believe we will begin with Ms. Sirois. The floor is yours, madam.
[Translation]
Michèle Sirois, President, Québec Women’s Rights Association: Honourable Senators, thank you for inviting us to appear with regard to Bill C-16. As citizens and feminists, we strongly believe that we must combat discrimination, but Bill C-16 does nothing to protect the rights of transgendered persons. The bill will, however, eliminate or weaken women’s rights, which is unacceptable for a society that has formally committed to defending those rights.
That is why we are calling for a gender-based analysis before this bill is passed. First, we wish to clarify what the words “gender” and “sex” mean. It is essential that this distinction be made in a bill that refers to gender identity. Sex refers to the biological characteristics that differentiate men and women, as is highlighted by Status of Women Canada and all organizations with responsibilities relating to equality between men and women. It is agreed that there are two sexes.
Gender refers to attributes that are considered female or male socially, culturally and historically. So it is a social construct, and this is what gender stereotypes refer to. In light of these definitions, we can ask what clever trick has been used so that a change in gender is now equated with a sex change, which is impossible.
Now, in what way does C-16 jeopardize the rights that women have fought so hard for over the past half century? Let me give you a few examples.
The first is in the field of sport. In March 2017, a male weight lifter won the Women’s International Weightlifting Championship, unseating the gold medallist from Rio. Until last year, he had competed against men. This year, he declared himself to be transgender and was thus allowed to compete against women.
The International Olympic Committee’s new standards that were very quietly adopted in 2016 allow men who identify as transgender to compete against women athletes if their testosterone level does not exceed 10 nanomoles per liter of blood, which is three to four times higher than a woman’s testosterone level, not to mention the muscle mass of male transgender athletes, which gives them an unfair advantage over women. Does that mean that, from now on, the acceptable testosterone level in women could be tripled, with the encouragement to doping that is associated with that? The growing participation of men who identify as transgender in women’s sport is jeopardizing the chances for young girls and women to win sports events, at all levels of competition. Women therefore have every reason to contest the arrival of male athletes in their competition. It will be difficult to contest this with Bill C-16, since women’s teams would be subject to lawsuits. Is this fair to women who have fought for decades to be involved in sports and take part in the Olympics?
With regard to prisons, everyone remembers Colonel Russell Williams, who was found guilty on 92 charges, including murdering two women and numerous sexual assaults. Colonel Williams liked to take pictures of himself in his victims’ underwear after committing his crimes. Why might he not decide that he would be better off in a women’s prison?
Moreover, the British association of gender identity specialists has warned the British government to be very careful with such transfer requests based on gender identity because they maintain, with evidence to back this up, that a growing number of sexual predators are claiming their gender identity, whether known or not, in order to request a transfer to a women’s prison. If there is nothing to back up that gender identity, on what grounds can penitentiary officials refuse such a transfer? Yet Bill C-16 does not set out any criteria in this regard.
With regard to children, by making it commonplace to change gender identity, Bill C-16 opens the door to the worst kind of abuse. We are witnessing an explosion in gender change requests from children who do not fit gender stereotypes, such as little boys who like princess dresses or teenagers who are uncomfortable with their breasts. The studies clearly show, however, that than 80% of children with gender dysphoria become comfortable in their bodies as adults. There is a lot of homophobia underlying this desire to treat children, many of whom are probably gay, among the people around them would rather say they were born in the wrong body. Mutilation such as mastectomies performed on teenagers, blocking puberty and taking hormones for life will result in sterilization, mutilation and chemical castration. How could that be in the fundamental interests of children?
[English]
The Chair: We will now move to Mr. Cameron.
Jay Cameron, Barrister and Solicitor, Justice Centre for Constitutional Freedoms: Honourable senators, thank you for the opportunity to address this committee. We live in a free society that places a high value on personal autonomy and individual rights. In the context of free speech for all, I will illustrate what this means.
In a free society, if I wish, and my grades are good enough, I may go to medical school and I can earn the prestigious title of doctor, but I cannot compel people to refer to me as “doctor”, and neither can the government. This is so despite the fact that I may strongly identify as a doctor. It might even be the driving force behind my identity.
I can be a teacher at a university and be called professor, but I cannot be charged under human rights or criminal legislation if I refuse to call someone “professor”, even if she is one. I can be a pastor or a priest or a rabbi and minister to my communities for 50 years, and yet I cannot compel society to address me as “reverend” or “father” or “rabbi”. And neither can the government. Her royal majesty may make me a knight, but I cannot be charged under human rights or criminal legislation for refusing to call a knight “sir”.
In a free society, I am free to refer to myself as anything I want. I can refer to myself as a man or a woman, or anything in between or something new entirely, but I cannot compel someone to refer to me as such or make them use my chosen identifier or pronoun. Neither can the government.
The bill before you, Bill C-16, is a vague and defective piece of legislation because it lacks certainty. Its uncertainty allows for it to be interpreted as compelling the speech of Canadians, such as the forced use of gender-neutral pronouns. It is unprecedented to have human rights or criminal legislation require speech of its citizens. Prohibit speech perhaps in limited circumstances, but require it, never. Not in the civil context.
It is contrary to the jurisprudence to have the power of the state compel the tongue of the citizen. The Supreme Court of Canada stated in National Bank of Canada v. Retail Clerks’ International Union that anything that forces someone to express opinions that are not their own is a penalty that is totalitarian and, as such, alien to the tradition of free nations like Canada, even for the repression of the most serious crimes.
Chief Justice McLachlin in R. v. Sharpe made it clear that the fundamental freedom of expression possessed by Canadians makes possible our liberty, our creativity, our democracy. It does this by protecting not only good and popular expression, but also unpopular and even offensive expression. I would note that offensive is a subjective thing. What one finds offensive, another may not find offensive and, to a certain extent, I must choose to be offended by what I hear.
Not everyone appreciates freedom of expression as they should. There can be little doubt that the Canadian Human Rights Commission, based on existing human rights jurisprudence, will compel service providers, employers and employees to refer to transgender people by their self-chosen pronoun, with legal consequences for those who refuse to use such language. This is already occurring and it should concern you.
The Ontario Human Rights Commission explained that refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity or purposefully misgendering will likely be discrimination when it takes place in a social area covered by the code, including employment, housing and services like education.
Even supporters of Bill C-16, such as University of Toronto law professor Brenda Cossman, admits that pronoun misuse can constitute a violation of human rights legislation. By not using someone’s preferred pronoun, one could be subjected to fines, damages, termination of employment, ideological re-education in the form of sensitivity training and other so-called remedies. The fact is that if C-16 is passed, it will result in the government forcing people to say and not say certain things under the threat of penalty.
Honourable senators, I ask you to think carefully about what kind of a nation you want to create today. Shall we have a Canada where the halls are full of tattletales over pronouns and the easily offended make still greater attempts to use the power of a supposedly neutral state to advance their own agenda? At what point does reason intrude in this conversation? At what point do the principles of a free society and the right to speak prevent state overreach? Do we really want a Canada where people walk on eggshells, afraid to speak, afraid not to speak? I do not. But I am afraid that you will not hear me for the clamour of those who do not realize what they are asking for.
Many support this bill innocent of the repercussions on their own liberty, if it passes, but the fact is this: There are elements who support this bill that are hostile to the freedom that Canadians currently enjoy, not because they love a free society but because they believe there is too much freedom in society.
The Chair: Please wrap up.
Mr. Cameron: These persons say it must be curtailed further. Parliament has an obligation to only enact legislation that is constitutional. In my respectful submission, this law in its current form offends the Charter of Rights under section 2(b). You should want to amend the draft legislation —
The Chair: We have to move on.
Professor Pardy, the floor is yours.
Bruce Pardy, Professor, Faculty of Law, Queen’s University, as an individual: Thank you for having me. I urge you not to pass Bill C-16 in its present form because of the threat that it poses to freedom of speech. I would like to make four points.
Number one, forced speech is the most egregious infringement of freedom of speech, and freedom of speech may be the most important freedom that we have. Compelled speech puts words in the mouths of citizens and threatens to punish them if they do not comply. When speech is merely restricted, you can at least keep your thoughts to yourself. Forced speech makes people say things with which they do not agree.
Number two, I am speaking here of the first part of Bill C-16, the part that amends the Human Rights Act. That amendment may well require people to use non-gendered speech against their will. That is a form of forced speech. The amendment, as has been pointed out, does not refer to speech specifically. So how do we know that that is, in fact, the case?
As has been mentioned, you must look to what the human rights commissions say about it because it is those commissions — both the Canadian version and the provincial versions for their provincial codes — that have the primary task of interpreting and applying those provisions. It is not the courts first and foremost; it is not the government that controls the meaning. Once the statute is passed, its interpretation and application are largely controlled by the commission and then also by the tribunal. The courts will provide these bodies with a very high degree of deference, and it will be their call. The statute will mean what the commission and tribunal say that it means.
So, what do these bodies say that it means? You have heard these words before. I am going to read them again, because the point is important. The Ontario Human Rights Commission believes that the equivalent provisions in the Ontario code mean, or may very likely mean, that people must use pronouns against their will: “Refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity or purposely misgendering will likely be discrimination.”
Number three, if the government does not intend for Bill C-16 to force speech, then it would be a simple matter to say so in the bill. It is not complicated. That indication would foreclose that interpretation by both the commission and the tribunal.
Number four, the honourable Minister of Justice appeared before this committee on May 4. I understood her to state that she did not believe that Bill C-16 would require people to use pronouns against their will and it was not the intent of the government to make them do so. My point is this: If that indeed is the case, then putting that intent in the legislation is as simple as pie. It has so far declined to do so, and if that in fact is their intent, I cannot understand that reluctance.
I think I’ll leave it there, Mr. Chair.
The Chair: Thank you. We’ll move to questions, beginning with Senator Plett.
Senator Plett: Thank you to all our witnesses. I have a couple of questions.
Professor Pardy, you started very clearly talking about the issue that I wanted to question you on, but I will pose the question in any event. You said here and you mentioned in your written submission that if the government does not intend for Bill C-16 to force speech, it could easily make its intent clear, and you have confirmed that here. You are absolutely right with what you said you heard the minister say. I heard the minister say the same thing. I was sitting beside her.
Why do you believe the government has not included this intent, if that is their intent? And in your opinion, what could the government have done to make Parliament’s intention clear for future interpretation of this legislation? There are those here who are continually saying that it does not compel speech, and then there are those like yourself and others and I believe that it does. What could we do to make it explicitly clear that it would not compel speech?
Mr. Pardy: Thank you for the question. I have included in my written submission a very simple proposed amendment that would in fact put that government intent in place. It does not interfere in any way with the rest of the bill; it simply indicates that the bill is not intended to mean that the use of male and female pronouns to refer to any person would constitute a discriminatory practice.Now, there are probably various ways to word that kind of amendment, but the point is that the amendment is very simple. It’s not legally difficult to do.
As to the other question about why the government has declined to do so, I am not the government so I could only speculate. Perhaps they would like to leave this question in the hands of the commission and the tribunal and have not actually determined which outcome they prefer, or perhaps they prefer the outcome that it looks like the commission and tribunal would come to. But that is pure speculation on my part. I really cannot understand why, given the intent that the minister suggested, that simple step would not be taken.
Senator Plett: We all like to speculate on why the government does certain things, so we will continue.
Mr. Cameron, we have constitutional experts, even right here at this table — maybe not on this side of the table but certainly on the other, with people like Senator Joyal and Senator Baker, who isn’t here right now — who are arguing in favour of this bill, yet you have used the Supreme Court. I will just read one passage here, a ruling that the Supreme Court made inNational Bank of Canada v. Retail Clerks’ International Union et al. Anything that forces someone to express opinions that are not their own is a “penalty [that] is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes.”
Given that ruling by the Supreme Court — again, you talked about the constitutionality — why do you believe this is not constitutional when other constitutional experts say right on the face of that that it doesn’t really matter, it’s still constitutional?
Mr. Cameron: There are two reasons really, I would say. The first is that the evidence that we’re having around this gathering right now, and there have been other panels as well who have been here, the fact that we’re debating whether or not it would compel speech or it wouldn’t — and there are so many people who view it as being compulsory of unwanted speech — shows that there is a problem with the legislation. Criminal legislation can be struck down because it is vague or because it is uncertain or because it overreaches, and in my respectful submission, this legislation does all of those things.
The second reason is that in the history of Canada, as far as I’m aware, there has never been a circumstance where the government passes a law to require the citizen to speak in a certain way. That is a gross state overreach, and it offends section 2(b) of the Charter on its face. This body has an obligation to pass only constitutional laws. If you don’t, the courts will fix it for you, so you should want to fix it here and now.
Senator Plett: If there is a second round, chair, I have a question for the ladies at the table. Thank you.
Senator Pratte: I don’t think the courts will find anything because they won’t find anything in the law that imposes any pronoun or any noun.
Anyway, I don’t think it’s a matter of compelled speech. I think it’s again a matter of pure respect. In a civilized society, there are simply things that you cannot say, and laws protect people against discriminatory or hateful language. Some people may think that Blacks should not be referred to by their name, that they should all be addressed, “Hey, nigger.” But you don’t address them as, “Hey, nigger;” you call them by their names because that is what you do. The same thing would apply to transgender people; you don’t call them by a name they don’t think they should be called by. You call them by the name and/or the pronoun of their choosing because that is the respectful thing to do, isn’t it?
Mr. Cameron: Were you addressing that question to me, sir?
Senator Pratte: To you or to Mr. Pardy.
Mr. Cameron: I’m happy to address the question, sir. Thank you very much.
In our society, which is a free and just society, we do not compel respect. It is not the government’s role to compel us to respect each other. There is no case law that says I must respect any person or that they must respect me. I’m a lawyer. I don’t require people to speak to me as “esquire” or “Mr. Cameron” or “barrister and solicitor.” If they refuse to address me as such, I would have no legal recourse against them. Neither does a doctor, neither does a professor, neither does a knight, neither does a senator.
Mr. Pardy: Two quick points: First, the question about compelled speech is not whether or not the speech that is being compelled is reasonable speech. Any speech that is compelled is, by definition, unreasonable. If you had a statute, for example, that compelled people to say “hello” and “please” and “thank you,” all of which are perfectly reasonable things to say, the statute would be totalitarian because it puts words in the mouths of citizens. In a free country, people decide for themselves what to say, and as soon as you take that right away from them, you cannot claim to be living in a free society any longer.
Second point: You cannot legislate respect. Respect is an emotional and intellectual response to something and somebody. It is earned and developed over time. All you have done is take the force of the state to create the pretense of respect, and that is a sad facsimile.
Senator Pratte: You can certainly legislate to prevent lack of respect. Again, with respect, there is nothing in the legislation that mandates pronouns or nouns. There is nothing in the legislation that says that.
Mr. Pardy: I agree that it does not refer to speech. In fact, I hope that we would agree. It sounds like you interpret the statute as though it does not require speech and should not require speech. I agree with you. All I’m saying is it does leave open that possibility because of the control the commission has, and there is an easy way to make sure that your objective and mine are met, and that is to insert a very simple amendment saying what you just said.
[Translation]
Senator Boisvenu: My question is for Mr. Cameron. Many observers have argued that the bill is poorly drafted, especially since there is no definition of the terms “gender identity” and “gender expression”. I have two questions in this regard.
First of all, could you give us your thoughts on the risks associated with there being no clear definition of these two terms? Since these terms are not defined, is there not a risk that the number of charges against citizens could increase?
[English]
Mr. Cameron: In response to the first question, there are risks with regard to uncertainty. One of the problems with this legislation is that it introduces the thorny subject of gender identity into a realm that is filled with relatively stable and certain categories.
The question of gender identity has a level of subjectivity that some of the other categories of the human rights legislation does not have. They are not subjective. For example, if I have a religious belief, it is my belief and it’s personal, but if I am a woman or a man, it is something that is objective. But there is a level of subjectivity that is in disagreement in the scientific, psychological and sociological communities with regard to gender identity.
People disagree on what it means. This side of the table disagrees. This side of the table disagrees. The whole room disagrees. Because there is disagreement, when you have something that says that there is a prohibition against doing something towards a specific category, because there is uncertainty with regard to this term, there is vagueness and that leads to risks.
It can be somebody’s perception on one side — somebody in a hallway, a professor, an employee, a boss or a judge — that what was said is an insult to gender identity. Other people may not see it the same way and that is because that term remains undefined. That’s a substantial problem, and it renders the legislation unconstitutional.
[Translation]
Senator Boisvenu: My second question is as follows: does the fact that there is no clear definition pose a risk that the number of charges could increase?
[English]
Mr. Cameron: Certainly. Different people who support this legislation have different agendas. Some people want this because they feel that without it, the trans community will not be treated fairly. Some people think that there is too much freedom of speech to be disrespectful in society, and so we need to curtail the level of freedom in people’s speech.
But irrespective, because of the uncertainty, accusations with regard to what is or is not an insult or inciting hatred towards gender identity will absolutely increase because of people’s perception of what it is or may not be. Then you have unfortunate people hauled in front of tribunals and courts to answer for something that is innocuous and is in accordance with their right as Canadians for free speech under section 2(b) anyway, so it will create confusion, which is undesirable.
Senator Omidvar: Professor Pardy, I note with some interest that in January of this year, you debated Professor Jordan Peterson, who was our witness earlier, on the compelled use of pronounces in Bill C-16. You debated in favour of Bill C-16. I wonder if you can recall your arguments in favour of Bill C-16 and compelled pronouns.
Mr. Pardy: Certainly. I should give context to that debate. It occurred in the following way: Dr. Peterson was coming in to do the debate and, on my faculty, the hosts of the debate went round to all the various faculty who were of a different opinion than Dr. Peterson to invite them to debate him, and they declined. And so they came to me, even though they knew I agreed with him, and asked me to play devil’s advocate, which I did do.
One of my arguments was that I said there is no such thing as free speech. We have restrictions all over the place. We have defamation. We have negligence. We have counselling crimes. To say that there is freedom of speech is just disingenuous. Of course, that argument is not correct. We do have freedom of speech, and those infringements are exceptions, and all those exceptions are restrictions on speech.
This infringement of freedom of speech is categorically different because it, as I said before, puts words in the mouths of citizens, which those other restrictions do not do. In order to avoid liability in defamation, all you have to do is keep your opinions to yourself. I’m not endorsing those other instances of infringement of freedom of speech, but I am saying that they are less severe than the one we are talking about today.
Senator MacDonald: I have a question for you, Mr. Pardy. In all the discussion surrounding this bill, we keep hearing its objective, personal and identity-based. People say that religion is personal, subjective and identity-based, so what is the big deal? I’m asking you: How do you respond to that?
Mr. Pardy: I respond this way: I think those two kinds of interests are given different status. If you have the freedom of religion, then it gives you the freedom to determine your own beliefs, and that’s appropriate.Trans people and non-gendered people should also have the freedom to determine how they want to portray themselves to the world. Those are the equivalents. But here is the one thing that people who claim freedom of religion do not have: They do not have the right to demand that other people agree. The freedom of religion is only the freedom not to be interfered with.
I would be the first one to suggest that trans people and non-gendered people have the freedom to do the same. They have the freedom to decide for themselves how to portray themselves in the world. But the rest of us also have the freedom to come to our own opinions about things, including religion and including transgendered matters. In a free country, all of us have the freedom to come to our own conclusions. I think that is the distinction between these two grounds that you spoke of.
Senator MacDonald: Thank you. You make the distinction very well.
Senator Joyal: My colleague Senator Plett has invited me to join the debate, and I will accept that invitation, senator. Thank you.
As you know, the Charter contains a list of rights, and the Supreme Court has clearly recognized that there is no one right superior to the others. They are all rights that exist simultaneously in any one person’s capacity to intervene in public debates. For instance, in the case that you raised, that it would be an infringement on section 2(b), which is, you know, freedom of thought, freedom of discussion and freedom of debate, would be in conflict with section 15, the equality clause, to the benefit of the law.
Of course, all those rights, whatever they are, are subjected to reasonable limits in a free and democratic society. The court has established clearly the test to impose to conclude if the democratic society or reasonableness is met with the limit.
If you hold the conclusion very strongly that this bill is an infringement on the Charter, instead of building into it an exception, why should we not consider referring the bill to the court so that the Supreme Court would pronounce whether this bill is constitutional? It would put an end to the debate, and everybody in Canada would recognize the wisdom of the Supreme Court in relation to the interpretation of the alleged violation of section 2.
It seems to me that there is a way around the argument that this bill is an infringement, and we would know, considering the fact that, I think, our colleague Senator Baker has been listing the provinces — almost 10 provinces — in which there is provincial legislation of a similar nature. Then, we would have a law in the land that would be final, and everybody would abide by it and adjust to it. So is that not a less expensive, more efficient way to address the constitutional doubt that you have with the bill, instead of trying to amend it?
Mr. Cameron: From my perspective, the contention with regard to this bill is a red flag with regard to the bill, so the proper thing to do is to address the contention, not necessarily to refer the contention to a court comprising individuals who will have their own contention, perhaps. You’ve heard from lots of witnesses why they’re concerned about this bill, people who are versed in the criminal law and people who are versed in the Charter. So it seems to me that, if you want to uphold the principles of a free society, the proper thing to do is to put an amendment into the bill to address the concerns that a lot of people have, but, of course, it’s open to the Senate to refer the bill to the Supreme Court of Canada and obtain a ruling.
Senator Joyal: We could amend the bill saying that the bill will not be enacted pending reference to the Supreme Court. It’s a possibility to do that. Of course, it’s not the way you propose; you prefer that the legislation be amended and then challenged in court. One way or the other, as we heard from the previous witnesses, that kind of proposal is susceptible to court challenge.
Mr. Pardy: But it’s even not clear what it is you’re trying to do. Is the bill intended to force speech or not? People are saying, “No, no, it doesn’t do that.” If that’s what you mean, then say so. If you do mean that, then let’s say that. Why would you want the courts to be making the law in the country? You’re the legislature. Legislate.
Senator Joyal: We can legislate as long as we want, but you contend that, if we legislate this bill, it would be unconstitutional.
Mr. Pardy: Not if you put in the amendment, sir.
Senator Joyal: On the basis of what it is now. In other words, what you tell me is, if this bill is not amended, you would be of the opinion that it could be challenged. And it would be challenged in court.
Mr. Pardy: But, at this stage you don’t even know what it is that the court is going to be looking at because you haven’t had it interpreted by the commission yet. It’s a complete open book. Why don’t you decide what it is that you want the statute to actually say and put that in place, and then, if it runs into constitutional trouble —
The Chair: We’ll have to leave it there.
Senator Frum: Mr. Cameron, you got cut off at the beginning when you were about to suggest an amendment, and I just want to invite you to finish that thought.
Mr. Pardy, you said you had the suggestion for your amendment in your written submission, which I don’t have. I’m just wondering if you could also explain it again. I want to give you each a chance to make your proposal.
Mr. Cameron: I’ll use Professor Peterson as an example in regard to the amendment. He’s an academic. He wants to write from an academic perspective in regard to this issue. He wants to consider it from a scientific and sociological and psychological perspective, and he wants to add to what really is a fledgling body of work at this point in time in regard to scientific literature on this particular issue. Let’s face it; let’s not ignore the reality. There’s a lot of disagreement over gender identity in the scientific community.
So in order to protect people like Professor Peterson, who, from my perspective, have a right to study and then write about their findings without fear of running afoul of section 319 of the Criminal Code, what should be done is that an amendment should be drafted that says, “For ease of clarity, the failure or disinclination to use gender-neutral pronouns or gender identifiers shall in no way be construed to contravene this statute, either in regard to the criminal context or the Human Rights Code.” I think Professor Pardy and I more or less agree on that point, that that would be something that would go a long way to showing what the government is trying to do and would show that they care about the rights of Canadians who have a right to have an opinion on this issue and express it.
Mr. Pardy: I will read it to you quickly. It’s very short.This is to be added to the bill.
The following section is added to the Canadian Human Rights Act:
3.1(a) Nothing in this Act shall require any person to use particular words or phrases to refer to any other person:
(b) For greater certainty but not so as to affect the generality of subsection (a), the use of male or female pronouns to refer to any person does not constitute a discriminatory practice.
Senator Frum: Okay, but, if you took that last phrase, that does in fact conflict with gender expression. The inclusion of the term “gender expression” in this bill is precisely so that people can compel people to use pronouns that do not conform to male or female.
Mr. Pardy: But this is the question, though, right? If gender expression is to mean that you must use certain pronouns, then we do have forced speech. That’s the question. That is not the only possible interpretation of gender expression. What it also could mean is that people are free to express their gender in the way they see fit, and they’re not allowed to be denied a job for that reason. That would be the meaning that I would expect would be standard and most like the effect of the other kinds of grounds that are now in the act.
[Translation]
Senator Dupuis: Mr. Pardy, I have a question for you, one main question and a supplementary question. My main question is as follows: in your proposed amendment, on page 7 of your presentation, have you considered the possibility that this kind of amendment could undermine the current theory whereby the rights granted by the Human Rights Act are all equal and have no special status that can in some way exempt them from the other rights? Do you not think this type of amendment draws attention to one ground for discrimination? By adding a ground to the Bill C-16 as it is, does that not limit the protection of the other grounds for discrimination?
[English]
Mr. Pardy: No, I don’t think so. I think that’s because this is a ground that has this difference. It is the only one, really, that raises this question of language. The irony here is that, when it comes to forced speech, we are in a situation where this ground and the people within this group, if you can call it a group, will end up with more rights than anybody else because they are the only people who are entitled to require people to change their speech. I can’t imagine any of the other grounds having that effect. If you are looking at discrimination on the basis of sex or age, there’s no language question in there. As Mr. Cameron has suggested, there isn’t anybody else in society who has the ability to demand being addressed by a certain word. If you were to address me by a word that I don’t like, that’s too bad. The one exception will be this ground and this group.
[Translation]
Senator Dupuis: The other argument raised by the group before us today pertains to the protection of women’s rights. With regard to the ground of sex, as pertains to women, many men consider it acceptable to call women any name they like. Yet, we have protected the reason for which we decided to prohibit discrimination based on sex, as well as harassment. That is precisely because people thought they could use any language they liked. That does not mean that people cannot talk in Canada, but it is prohibited to use terms beyond a certain limit established by jurisprudence. At that point, does that not circumvent the equal protection afforded on different grounds?
[English]
Mr. Pardy: I don’t think so. I think the key word in your question was “prohibition.” When it comes to discrimination that might be reflected in language, you’re suggesting there might be prohibition on referring to people in a certain way. Maybe that is so. But it is still a prohibition, not a requirement. In this case, we’re talking about being required to take a certain pronoun identified by a certain person and that person saying, “You will use this particular word to refer to me, or I will report you to the Human Rights Commission.” That does not happen with any other ground in the act.
Senator Batters: Thank you all for being here.
If I can address this to one of the women from the Québec Women’s Rights Association, could you please tell us what you think the impact of this particular bill could be on safe spaces for women?
[Translation]
Diane Guilbault, Vice-President, Québec Women’s Rights Association: The recognition of gender identity allows a man who identifies as a woman to enter spaces that were designated for women based on their sex. Women have fought for a long time to obtain protections based not on gender, but on sex. In this debate, these two terms are confused a great deal, especially in English since the word “gender” is often used instead of “sex”. The term is used differently in French. We have used the terms as officially used by the Government of Canada and by all organizations that work to promote equality between the sexes.
Certain rights are based on women’s sex and not their gender. It is not because women wear shoes, dress a certain way or are submissive that they need separate spaces. In the PowerPoint presentation, we provided statistics about violence against women. Male violence does exist, unfortunately. Protections have been provided for women, who are the main victims of such male violence. The figures from Statistics Canada confirm this: violence against women is a real thing and women have specific and established reasons for protecting their safety. Through the Minister of Status of Women, the Government of Canada recently made a commitment to preventing violence against women in its statement at the UN on March 15.
Since the concept of gender identity is not defined, as we saw earlier, and can be very subjective and not verifiable, that means that any man can claim gender identity to enter safe spaces for women, spaces that are based on their sex.
If gender identity is recognized as being equal to sex, that eliminates protections based on sex. This is a concern. We gave two examples relating to prisons and sports, where physical differences are obvious, especially in sports. The great tennis champion Serena Williams has even said that she could not beat the top 100 male tennis players. In competitive sports, differences based on sex are important, and denying that they exist denies women’s rights.
Since the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was signed in 1982, the government has been committed to fighting discrimination against women and fighting for their equality. Yet their equality depends on the protection of spaces designated for them based on their sex, and on the protection of programs such as access to positions of power. Various programs in the provinces across Canada are designed to increase the participation of women in positions of power. There are also programs for change rooms and safe spaces for women.
This is also a problem in prisons. In the case of male inmates convicted of sexual assault against women, which is why they are in prison, there is nothing stopping them from claiming gender identity to request a transfer to a women’s prison. In Great Britain, during the study of a bill similar to Bill C-16, that is exactly what the association of gender specialists stated after reviewing inmate requests to be transferred to a women’s prison. They have nothing to lose. They are in jail for 20, 25 or 30 years. There is nothing stopping such inmates convinced of violence from requesting a transfer. That puts women in danger.
We are concerned to see that, from the outset, women’s issues, especially during debates in the House of Commons, have been—
[English]
The Chair: We’ll have to leave it there; I’m sorry.
A brief final question from Senator Gold.
[Translation]
Senator Gold: I would like to follow up on that last point. I understand and respect your concerns. Is the solution not to eliminate the protection from discrimination against transgendered persons or to recognize that there are situations, perhaps the two that you mentioned and others, in which discrimination would be “reasonable”, in view of the need to protect women, physical differences or some other reason?
Ms. Guilbault: As early as 2013, the Chief Commissioner of the Canadian Human Rights Commission stated that the rights of transgendered persons were protected by the Charter and that the Commission was already receiving and processing complaints involving discrimination against transgendered persons. We completely agree with that. We believe that we must protect persons who do not fit the gender stereotypes associated with their birth sex. These people should not lose their job and be subject to discrimination.
Should certain limits not be set though? If protection is based on sex, does gender identity not automatically become synonymous with a sex change? It is possible to change gender. Many people do that, but it is not biologically possible to change sex. In certain cases, belonging to a sex, the female sex — because that is where the dangers arise —-, must be respected. To be clear, we requested that a gender-based analysis be conducted when the bill is passed by the government. The Government of Canada has a commitment to ensure that, before the bill is passed, it will not violate the rights of women and will potentially promote women’s rights. Our main request, as the auditor general also pointed out in 2016, is that such a gender-based analysis be conducted. That would make it possible to assess the sectors where it might be applied differently in order to protect women’s rights, their right to safety in particular.
[English]
The Chair: Witnesses, thank you all for being here today and assisting the committee in its consideration of Bill C-16. It’s much appreciated.
(The committee adjourned.)