Why is Canada's bill C-16 believed to be legislating pronoun use?

Question

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?

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¹_{This 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.}

Answer 1

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

Answer 2

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.

Answer 3

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.

Answer 4

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.