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

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

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


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

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    This appears to be asking a legal question, on the proper interpretation of a certain bill. Should be moved to the legal S.E. – James K Jun 17 '17 at 18:58
  • This has become a partisan issue to some degree. Conservative "free speech" vs Liberal "Human rights" as they like to label it. A little reference material of the two sides torontoist.com/2017/05/… vs the conservative leader maximebernier.com/… – Twelfth Oct 19 '17 at 17:25
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There is evidence that enforcement of this bill may result in some legislation of pronoun use.

C-16 specifically and intentionally does not declare definitions of gender pronouns or identity. The Canadian Department of Justice website states that the Bill will not define the key terms itself, and instead will be based on the existing definitions and examples declared by the Ontario Human Rights Commission:

Q. Will “gender identity” and “gender expression” be defined in the Bill?

A. In order to ensure that the law would be as inclusive as possible, the terms “gender identity” and “gender expression” are not defined in the Bill. With very few exceptions, grounds of discrimination are not defined in legislation but are left to courts, tribunals, and commissions to interpret and explain, based on their detailed experience with particular cases.

Definitions of the terms “gender identity” and “gender expression” have already been given by the Ontario Human Rights Commission, for example. 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.

As stated above, the government will leave it up to courts, tribunals, and commissions, such as the specifically mentioned Ontario Human Rights Commission, to define how the law is enforced.

The Ontario Human Rights Commission website specifically states that using the incorrect gender pronoun may be considered discrimination.

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 when it takes place in a social area covered by the Code, including employment, housing and services like education.

Other relevant case law includes a case where the Vancouver Police were fined by the human rights tribunal for, among other things, misgendering a trans woman by using her legal (male) name and male pronouns instead of her preferred name and pronouns.

Specifically, the decision against the Vancouver Police included the following declaration with respect to the misgendering of the trans woman:

[270] I also find that, when Ms. Dawson was referred-to with male pronouns in the report of the occurrence on June 18, 2010, it amounted to discrimination on the basis of sex. Notwithstanding that her legal name was Jeffrey, she advised the officers that she was a transsexual female and was not treated as such

[189] There are two aspects to what I have found occurred on this date that could be considered to be an adverse impact. First, is the use of the name Jeffrey and male pronouns to describe Ms. Dawson’s actions and property.

[216] Use of the name Jeffrey and male designation came up often in the evidence. This is the only instance that was raised explicitly in the complaint. I accept that use of the name Jeffrey and the male gender are matters which cause distress to Ms. Dawson and can be considered adverse

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    You state that using the incorrect pronoun may be considered discrimination, but the quoted text seems pretty clear that the issue is about refusing to use the correct pronoun. Perhaps that's a fine line, but it seems to be a pretty clear line. – user1530 Jun 19 '17 at 22:11
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    @blip That is an interesting distinction which I would argue is actually cause for even more controversy. Rather than telling you what you can't say (i.e. genocidal hate speech or holocaust denial R. v. Keegstra 1990), this Bill is now saying that if you interact with someone who identifies as transgendered, that you are compelled to use their name and their desired pronoun, based on the quote: "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 ..." – roxor Jun 20 '17 at 1:23
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    I don't know if that would make it any more controversial, though. If you are a boss and you continually refer to your male subordinate as 'she' against their will, that's pretty clear workplace hostility. – user1530 Jun 20 '17 at 1:43
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    @blip The OHRC defines gender identity so broadly, that one could claim to be a new gender along the 'gender spectrum' every day and force the employer to acknowledge a new pronoun or face the tribunal. Yes, it is an unlikely situation, but based on my understanding it would be possible and legally enforceable. Nonetheless, I think you and I are in agreement that the answer to the OP's question is, yes, C-16 does have the power to impact gender pronouns use, based on the DOJ's reliance on the OHRC's definitions. – roxor Jun 20 '17 at 2:06
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    @tim Rather than get into it in the comments here, I added more supporting evidence in my answer from the Human Rights Tribunal decision regarding the Vancouver Police case – roxor Jun 20 '17 at 13:33
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There is no factual basis for the claim that incorrect pronoun use will lead to negative consequences.

The bill does two things:

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

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

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

The Canadian Bar Association agrees with this assessment:

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

[...]

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

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

[...]

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

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

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

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

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    -1. Universities alreay have rules for punishing people for thinking and saying wrong things, up to the discretion of whoever feels offended. This includes using wrong pronouns. Your answer asserts that this won't happen, based on a personal opinion of 2 lawyers expressed as a news bulletin (NOT a legal opinion in court upheld by a judge). – user4012 Jun 17 '17 at 14:01
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    @user4012 please don't shift the focus of the question. I am simply and only asking whether this specific bill actually includes any language that could be used to prosecute people for using one pronoun instead of another. University rules have absolutely nothing to do with national legislation and what one can be prosecuted for in national courts. And that's not the opinion of two lawyers, it's the official position of the Canadian Bar Association which was represented by those two lawyers in a senate hearing. – terdon Jun 17 '17 at 14:05
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    There is obviously not going to be a legal opinion from a judge for a law that hasn't passed yet. This is the official assessment of the canadian bar association and a professor of law, replying to the opinion of a professor of psychology. There doesn't seem to be any authority on the subject which actually agrees with his assessment. Regarding existing university rules: how is that relevant? If you want to DV because you disagree with the answer politically, feel free to do so. Your stated reasons do not make sense though. – tim Jun 17 '17 at 14:05
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    I'm no expert in Canadian law, but couldn't the employment discrimination prohibitions mean that someone could argue that a co-worker refusing to use a preferred pronoun amounts to discrimination? In the US, someone might use a law like this to argue that there was a discriminatory "hostile work environment" that the employer needs to correct (by punishing the employees not using the pronoun.) – D M Jun 17 '17 at 19:01
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    @DM my thoughts, too... there are two levels to this, someone making an occasional mistake because of habit (if the trans person was known previously) or mistake; and someone deliberately chosing to ignore the gender change (either by belief or to harass the trans person). In the later it should not be different that someone chosing to call me "Miss" despite myself being a man and ignoring my requests and warnings to not use that style. But of course some people will present it as the former in order to confuse the public, for the reason tim stated in his answer. – SJuan76 Jun 18 '17 at 14:31
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I think anyone reading the laws the bill modifies could reasonably come to that conclusion.

According to the text of the Canadian Human Rights Act:

It is a discriminatory practice, directly or indirectly... in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.

and:

It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public... to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.

and:

It is a discriminatory practice, in the provision of goods, services, facilities or accommodation customarily available to the general public... or in matters related to employment, to harass an individual on a prohibited ground of discrimination.

It could easily be argued that using an "incorrect" pronoun means they are "differentiating adversely" in relation to that employee and/or customer.

According to the Canadian Bar Association, the pronoun use debate is a "misunderstanding", but they also say:

In federally regulated workplaces, services, accommodation, and other areas covered by the CHRA, it will constrain unwanted, persistent behaviour (physical or verbal) that offends or humiliates individuals on the basis of their gender identity or expression.

But using a "wrong" pronoun could easily "offend" someone, it would be "unwanted", and it would be "persistent" unless people changed which pronouns they say.

There's also this section in the Canadian Human Rights Act:

(1) Subject to subsection (2), any act or omission committed by an officer, a director, an employee or an agent of any person, association or organization in the course of the employment of the officer, director, employee or agent shall, for the purposes of this Act, be deemed to be an act or omission committed by that person, association or organization.

(2) An act or omission shall not, by virtue of subsection (1), be deemed to be an act or omission committed by a person, association or organization if it is established that the person, association or organization did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and, subsequently, to mitigate or avoid the effect thereof.

The effect of that is, an employer is going to be held responsible for the actions of its employees unless they take "all due diligence" to prevent the action. If one employee refuses to use the preferred pronoun of another employee (or customer), I'm not sure how a company could avoid needing to discipline the employee for not using the pronoun.

It's true that nobody can actually order them to fire the employee:

No order that is made under subsection 53(2) may contain a term requiring the removal of an individual from a position if that individual accepted employment in that position in good faith.

But that barely matters. The company is going to be facing liability if they employ both people, and it's legally prohibited to retaliate against the one making the complaint, so guess who is going to get the boot.

And finally, I note this section:

In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.

The prospect of increased punishment for willful or reckless discrimination implies that behavior which is neither willful nor reckless can also be punished, just not with the enhancement. This is likely to make companies paranoid.

It's true that this mostly applies only at work - however, we're at work for a rather large portion of our waking hours.

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    I wouldn't have answered this if it was posted in Law.SE asking what the actual effect of the bill would be, since I know very little about Canadian law. But this is in Politics, specifically asking about perceptions, which is different. Even if the legal analysis turns out to be totally wrong, people are going to be thinking like this. – D M Jul 6 '17 at 3:20
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    Could it "easily" be interpreted that way? Not logically, IMO, but if you're actively looking for an excuse to be offended, I suppose anything is easy (see USA examples of "War on Christmas," etc). Nice job citing actual passages in the legislation and breaking them out. – PoloHoleSet Nov 17 '17 at 14:30
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Contrary to another answer, there's by now actual evidence that the bill has led to actual negative consequences.

Lindsay Shepherd, a TA at Wilfrid Laurier University in Canada, was reprimanded by the universitry, NOT for even using the wrong pronoun, but simply for using the youtube clip during a lecture which showed a debate about usage of pronouns (and specifically, for not telling the students that one of the positions in the debate is 'wrong'.

A full account of the event can be found on Rubin Report episode "Lindsay Shepherd LIVE: Free Speech Battle with Laurier University", and a full recording of the interrogation session - in which the university officials very specifically cited C-16!!! - is also available on Youtube (although I hesitate to link that to avoid being flagged, in case the link is to the "wrong" channel. One of Canada's newspapers published a full transcript as well:

Rambukkana: So the thing about this is, if you’re presenting something like this, you have to think about the kind of teaching climate that you’re creating. And this is actually, these arguments are counter to the Canadian Human Rights Code. Even since … C-16, ever since this passed, it is discriminatory to be targeting someone due to their gender identity or gender expression.

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    I'm sorry but I don't want to sit through a one-hour video to understand. Do you have any official documents showing that the bill was relevant? Bear in mind that the bill does not in any way affect the rules of a university, so even if it were cited, that would not be an argument for (or against) the bill's being an attempt to legislate pronoun use which is what this question is about. – terdon Dec 2 '17 at 18:26
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    @terdpn the quote is from the transcript of the video. – user4012 Dec 2 '17 at 18:33
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    Yes, but how does that make an argument for whether or not the bill itself was an attempt to legislate pronoun use? That some random university official may have quoted the bill to support their views does not mean the bill itself had any text that was a direct attempt to legislate pronoun use. My question was not about "negative consequences". It is very specifically asking whether the bill itself can be construed as an attempt to legislate pronoun use. – terdon Dec 2 '17 at 18:44
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    All of this is true and even interesting but not what this question is about. My question is about how this bill can be interpreted to be legislating pronoun use. At best, this answer is just giving an (admittedly interesting) example of a random person's interpretation. As I told you last time you brought universities into it, I am asking about the state not non-governmental institutions. They have their own rules. – terdon Dec 2 '17 at 20:27
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    @terdon - the university wording sounded like they are following the law, not their own rules. Absent an actual court case, you can only speculate how the courts will rule - but people sitting on Canadian courts (based on prior free speech cases) seem to have mindset quite similar to quoted professor; so there is no reason they wouldn't use exactly same logic as that professor. The ONLY contrary info would be if the law explicitly contradicted such logic - and as I said in earlier comment, it very deliberately was NOT amended not to. Or if the court ruled a precedent stating the same. – user4012 Dec 2 '17 at 20:38

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