Senator Don Plett, Leader of the Opposition

Hon. Donald Neil Plett: Honourable colleagues, I rise today to speak to Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, gender identity and expression. I want to start by saying that I believe the intentions of the legislation are good. I believe that efforts to reduce discrimination upon any community should be applauded. However, this bill will not have that positive impact on the community that proponents are claiming it will, and further, there are serious concerns with respect to free speech.

I want to say that Senator Unger and I did not sit down and come up with the same notes, so if there are similarities, that is by coincidence.

Before I make my case, I would like to set the record straight on an idea that I have somehow been delaying this bill.

Let's make sure we are perfectly clear on facts. Senator Mitchell spoke to this legislation for the first time on November 28. There were 12 sitting days between then and the Christmas break, in which several other senators added their voice to the debate. As everyone in this chamber would know, arrangements and trade-offs are made with respect to timelines on various bills in advance of parliamentary breaks. This bill was not identified as one of the priorities for Senator Harder or for the Liberal government, so naturally we focused on the six pieces of legislation that were identified as a priority.

Colleagues, we have been back now since Christmas for 11 sitting days. This bill has been debated every week since our return. The Leader of the Government in the Senate himself spoke as recently as our last sitting week, and ironically, in Senator Harder's debate speech, he was saying that this bill was being delayed. I don't know how one makes the case that debate has collapsed in the middle of one's own debate speech.

As we know, extensive debate has continued this week. Most importantly, there was an agreed upon timeline between Senator Mitchell, the sponsor of the bill, and me that I would speak before the March break week. With this speech today I am not only honouring that commitment but I am also speaking a week early.

After I reminded Senators Harder and Mitchell about this, to my surprise, I read an article the very next day, with quotes from Senator Mitchell indicating that the bill is being stalled.

Then I hear that Senator Harder last week in a speaking engagement in Toronto told an audience that Bill C-16 is being delayed by Conservatives.

Senator Martin: Shame.

Senator Plett: This is a complete and utter fabrication, colleagues. There was a similar narrative when Bill C-279, a previous version of this bill, was in this chamber in the form of a private member's bill. I had introduced three important amendments at committee, which were adopted. Two of those amendments were supported by Senator Mitchell himself, and any or all of those amendments would have had the same effect of sending the bill back to the house. The bill then died upon prorogation, as we all know.

I will be the first to admit I was opposed to Bill C-279 and I'm opposed to Bill C-16, but I will not and never will stand to be falsely accused of stalling and/or delaying legislation.

With that said, we should not be cutting off debate on an issue as important as this. In the other place, they did exactly that. They heard from no witnesses at committee and rushed this bill through without proper consideration. Now, as a result, we have members of the House of Commons, including leadership candidates, stating publicly that they wish they had studied this legislation more thoroughly before the vote, even stating that if the vote were held today they would vote against the bill.

Colleagues, haste and carelessness has no place in this chamber.

I look forward to this bill going to committee so that it can be studied rigorously. Likewise, I look forward to robust debate at third reading so we do not find ourselves in the same regretful boat as our counterparts in the other place.

While I disagree with the way this was handled, I understand the reluctance of our elected counterparts to speak freely about this issue. Undoubtedly, there is a cultural war happening in the West, and the scope of acceptable thought and discourse continues to grow. Dissent from the acceptable line of thinking is met with labels that will too often achieve their desired intent and silence speech.

There was an article written last week by a college freshman at the University of California entitled, "Free Speech is No Longer Free"—

Senator MacDonald: You got that right.

Senator Plett: — in which the student writes: "People are afraid to speak their minds out of fear of being attacked, verbally abused or drowned in a slew of derogatory terminology." We have unfortunately seen proof of that derogatory labelling even in this chamber, but I would like to hope that the upper chamber will remain a hub for the free exchange of ideas.

When talking to a colleague recently who agreed with me about some of my concerns with this legislation and its impact on free speech, he stated, "Yes, but you're not the one to do it."

Perhaps I'm not. After all, one social science professor whom I have never met told me in writing that I am "a highly assimilated, unilingual, unhyphenated Canadian born and bred, white Anglo-Saxon, Christian male." She told me that the presence of these characteristics alone makes my privilege so high and my perceived level of oppression so low that there is virtually no validity to my opinion.

However, while I may not be the ideal candidate to bring these concerns forward, unfortunately I am one of few willing to do so.

Now, on that note, I would like to thank my colleagues who have had the courage to add their voices to this debate. I say that to members on both sides of this chamber, whether you are for or against this bill.

Bill C-16 seeks to add gender identity and expression to the Canadian Human Rights Act as new prohibited grounds of discrimination, as well as an identifiable group in the hate crime and hate speech provisions of the Criminal Code.

While there are no definitions in this bill, the justice minister and the Department of Justice routinely rely on Ontario's policy for guidance and have cited the Ontario policy as a sound example of how these terms could be defined.

The Ontario policy defines these terms as follows:

Gender identity is each person's internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person's gender identity may be the same as or different from their birth-assigned sex. . . .

Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person's chosen name and pronoun are also common ways of expressing gender.

Trans or transgender is an umbrella term referring to people with diverse gender identities, expressions that differ from stereotypical gender norms. It includes but is not limited to people who identify as transgender, transwoman (male-to-female), transman, (female-to-male), transsexual, cross-dresser, gender non-conforming, gender variant or gender queer.

Colleagues, gender expression was not included in Bill S-279 so this is a new term for us to consider. For that reason I would like to start with some of the problems with including "gender expression" into the Criminal Code as an "identifiable group."

Presently, identifiable group is any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability. To qualify under the hate speech or hate crime provisions, an accused would need to have demonstrated a bias, prejudice or hate to this identifiable group.

While the Canadian Human Rights Commission has made it clear that transgender people are already covered in the existing act, it could be argued that transgender people could qualify as an identifiable group under gender identity.

However, "gender expression" encompasses no group. Everyone expresses his or her gender, and there is no way to categorize such expression into a group. How do you have a bias, prejudice or hatred against expressions of gender? What would hate speech on the grounds of gender expression even look like?

For example, in Ontario, where gender identity and gender expression are enshrined in the Human Rights Code, a man recently took his employer to the Human Rights Tribunal because the factory required a clean-shaven face. The complainant claimed that growing a beard was an expression of his gender and that the policy prevented him from doing so. It was, therefore, discriminatory based on gender expression.

Presently, the only protected ground that is not an immutable characteristic and is based on an internal and personal subjective experience is religion. There is protection for discrimination based on religion. But the expression of that religion is implicitly covered by this ground. Likewise, gender expression would be covered by gender identity.

Egale weighed in on similar legislation when we were studying it last year. For those who don't know Egale, it is Canada's only national charity promoting LGBT human rights through research, education and community engagement. It was Egale's legal team's assertion that the inclusion of gender expression is not only unnecessary, but in fact constitutionally suspect. Senators Baker and Joyal, you will need to study that at committee.

They point out that:

There is a risk that including "gender expression" in the amendments to the Criminal Code would lead to a constitutional challenge and significant risk that "gender expression" could be struck down for being constitutionally vague or an unreasonable limit on freedom of expression for the accused, particularly in the context of the hate propaganda provision.

Egale continued:

In fact, the hate propaganda provision of the Criminal Code has survived Charter challenges because it is not overly vague and was found to be a reasonable limit on freedom of expression in its current form. This argument would be much more difficult to successfully make with the inclusion of "gender expression", which is open to many interpretations.

Constitutionality aside, think about the absurdity of this. Should there be a special human rights protection and hate propaganda provision relating to the way each one of us stands, speaks, dresses, moves or styles our hair?

"Gender expression" is a very problematic, new component to this bill, but the overarching issues go well beyond this addition.

It is important to note a few things. First, the Canadian Human Rights Commission has stated that transgender people are already protected under existing grounds so there is no gap in the law.

Second, with this legislation, we are prematurely shutting down a discussion on gender that is far from settled. The bill itself is predicated on a flawed and self-contradictory social science theory.

For starters, we are told that sex is assigned at birth. This is stated clearly in the Human Rights Code as well as the previous version of the bill in which definitions were included.

I don't believe that I need to break this down for most of you, but sex is not assigned at birth. Sex is a biological fact. It simply exists. It is determined by anatomy and chromosomes.

The same proponents in the actual definition of gender identity state that trans people have an identity that differs from stereotypical gender norms. This means that society has created certain norms and stereotypes for the male and female gender that we each adapt to. In other words, the gender norms are assigned, yet it is also argued that this identity is innate for trans people. So to summarize, gender, or one's being masculine or feminine, is based on social constructs for the vast majority of us. However, for trans people, gender is innate.

Some proponents of this type of legislation believe that all 70-plus known gender identities are innate, while others chalk up one's place on the spectrum to gender creativity, in which individuals can choose a gender identity for themselves.

The gender spectrum, by the way, includes terms like gender-fluid, which is a boy one day, a girl the next, gender-gifted, masculine-of-centre, et cetera.

This theory is also based on the concept that sex, gender, gender identity and sexual orientation all vary independently of one another — an interesting assertion for a sexually reproducing species.

One professor of transgenderism studies from the University of Toronto, on a debate on this very bill, stated: "There is no such a thing as biological sex."

When he was pressed — for the sake of brevity — he decided not to elaborate, or didn't have the answers. However, he did qualify the statement as not a personal opinion but scientifically proven. You can't make this up. Students in the Transgender Studies program at the University of Toronto are learning that there is no such thing as biological sex.

As University of Toronto Professor Jordan Peterson pointed out, with legislation like this, we are literally enshrining the social science theory of social constructionism as the legally sanctioned scientific doctrine of the land. As he said, "Look out, evolutionary biologists. The PC police are coming your way."

We have seen the effects that this ideological push has already had on scientists, professors and legislators who do not buy this idea of an infinite gender spectrum. When I said we are prematurely closing the debate on gender, it is because ideology is prevailing over science.

Canada's leading expert on gender identity, Dr. Ken Zucker, who has no moral opposition to transgenderism and, in fact, has been an advocate for the trans community, has been fired and his clinic shut down because his service was out of step with current thinking. For background, an award-winning and renowned psychiatrist, Dr. Zucker, operated a clinic at CAMH — the Canadian Medical Association of Mental Health — specializing in gender identity issues. After treating hundreds upon hundreds of patients over the years, he realized that many children brought in to him by their parents with gender identity issues actually ended up being homosexuals as adults but not trans.

Based on his work and the numerous studies confirming his findings, he told parents that when your little boy says, "I am a girl," best practice would suggest to correct him and say, "No, you are a boy." Dr. Zucker said that if this feeling continued past puberty and into early adulthood, obviously discussions around transition would need to take place.

However, to jump ahead, to push for the provision of hormone blockers to children who have asserted these feelings has long-standing and disastrous consequences. His critics have absurdly compared his watch-and-wait approach to conversion therapy — a failed effort to turn homosexual youth straight.

This reasoned viewpoint has now been rejected by CAMH. The science and medical communities' findings and proclamations of best practices are now being trumped by a social justice movement. Think about that. The clinic did not put forward evidence to dispute Dr. Zucker's approach, but rather claimed that the approach is "out of step with current thinking." Not "current research" or "current science," but "current thinking." This is so wrong, colleagues. Not only has this leading expert lost his a job but will now be at risk of discrimination if he misgenders a child with the improper use of a pronoun.

University of Toronto Professor Dr. Jordan Peterson got a lot of attention recently when highlighting this issue around artificially constructed gender neutral pronouns or preferred pronouns. When I say "preferred pronouns," I am referring to the infinite list that accompanies the 70-plus genders that one can choose to identify with, replacing the traditional he, she, his, her, et cetera. For example, some of these pronouns include ze, zir, zim, they, et cetera. But, as I said, the list is infinite and is purely at the discretion of the non-binary individual. Professor Peterson stated in a piece in the National Post:

. . . it is absurd to insist that each person should have the right to, or could practically, choose their own pronouns.

For the law to mandate usage of this language is, both in his mind and mine, preposterous.

In his article, he raised the case of New York, which now protects 31 genders listed in the law, including "gender gifted." New York is prepared to fine businesses up to US$250 million if owners or employees refuse to speak to each other properly. Professor Peterson points out that the 31 genders listed in New York's legislation are just ". . . a drop in the bucket compared to the number some would like us to use . . . ."

Independent legal analysis has shown that Professor Peterson's account regarding compelled speech are, in fact, legitimate. Toronto-lawyer D. Jared Brown stated in a detailed legal opinion that this legislation will be an unprecedented infringement on freedom of expression and an infringement on the principle that Canadians ought to be free from having to mouth opinions and ideologies that are not their own.

On the Justice Canada website, in their published review on Bill C-16, as was mentioned, is a Q&A section. The question is whether there will be definitions of gender identity and gender expression in the bill. The answer is that they will leave the definition up to the courts, tribunals and commissions to determine. The Justice Canada explanation further states:

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.

And with that statement of intent from the Department of Justice, we see that the federal human rights regime will mirror that found at the provincial level, including the policies. This practice of the federal commission mirroring Ontario's guidelines has become extremely common.

Interestingly, after concerns about compelled speech were raised, this link to the Justice Department's page was deactivated. Thankfully, not before many of us had saved a copy.

The OHRC has produced a policy on gender identity and expression and what constitutes harassment and discrimination, including "refusing to refer to a person by their self-identified name and proper personal pronoun." Brown states:

What this means is that if you encounter a person in a sphere of activity covered by the Code, and you address that person by a pronoun that is not the chosen/personal/or preferred pronoun of that person, that your action can constitute discrimination.

For example, if you do not believe that there are more than two genders for personal or religious beliefs, or because science and evolutionary biology tell you otherwise, you must still use this made-up and ever-evolving language to describe non-binary or gender neutral persons. Keep in mind, there are in transgender people who think the idea of more than two genders is ridiculous; they simply more closely identify with the opposite gender.

Colleagues, this is not simply an infringement on freedom of speech and expression, but it is actually compelling speech. We are enshrining a social science theory on the existence of gender spectrum into law. Those who do not subscribe to that theory and refuse to be a mouthpiece for an ideology they cannot support are left in the dark.

So what is the big deal? I can provide any honourable colleagues who are interested with the full legal opinion to which I am referring, but Brown clearly outlines the direct path from the refusal to use preferred pronoun to imprisonment. Brown concludes his position with the following:

Given that the Supreme Court of Canada has found compelled speech to be 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", it might be appropriate to examine Bill C-16 in greater detail to ensure that it remains consistent with Canadian constitutional principles and Canadian traditions of free expression.

Professor Peterson's job is at stake with the university because, as they have rightly claimed as his employer, the university is responsible for the public statements he makes. It is very telling, however, that Professor Peterson's intellectual dissent is considered so outrageous that it warrants two warning letters from the university. However, the professor of transgenderism studies who publicly states that "there is no such thing as biological sex," the university — which houses a biology department — is completely silent.

For those who feel this bill is a compassionate move forward, think about what this movement is doing to children who may be struggling with gender or sexuality and are now being presented an artificial choice of 70 genders.

In fact, last year, 7 per cent of those enrolling at the University of Toronto checked the box "other" when it came to gender. That 7 per cent does not include trans people who identify as the opposite sex but strictly those who are non-binary, no gender or all genders.

Children are being given hormone blockers and transition is now encouraged even earlier for children who are either struggling with gender dysphoria or simply state their wish to be the opposite sex. It is important to note that virtually every single peer-reviewed medical article that studies gender dysphoria in children or adolescents confirm that in the vast majority of cases these feelings of gender dysphoria remit after puberty. These are the facts.

As Margaret Wente said:

What if you're pushing them on a path they don't need to go down? At what point do you start taking life-altering decisions for a child that will have enormous physical, social and emotional consequences?

As Dr. Alice Dreger, bioethicist and professor at Northwestern University's Feinberg School of Medicine, said, parents who encourage their children to change genders "are socially rewarded as wonderful and accepting," while parents who try to take it slow "are seen as unaccepting, lacking in affection and conservative." She explained the phenomenon:

Parents don't like uncertainty . . . . They'd rather be told, "Here's the diagnosis, and it's all gonna turn out fine."

This professor is actually a transgender advocate but prefers evidence to ideology.

There are feminist groups, women's groups and advocates for the protection of women in safe places who have serious concerns with embedding a gender spectrum theory into law which, in their words, reduces womanhood to a whim. There are also many women's advocacy groups who feel that the architects of this legislation have not given any thought to a gender-based analysis — the absence of which they claim is responsible for the lack of preservation of sex-based protections.

It is interesting. The bill and the ideology surrounding it make a distinction between gender and biological sex in terms of identity but conflates the two when it comes to sex-segregated spaces. You can't have it both ways.

Feminist Meghan Murphy recently wrote in the National Observer:

The idea that gender is something internal, innate, or chosen — expressed through superficial and stereotypical means like hairstyles, clothing, or body language — is deeply regressive.

She continued:

Beyond misguided language there is the fact that we are very quickly pushing through legislation that conflicts with already established rights and protections for women and girls.

Women's spaces — including homeless shelters, transition houses, washrooms, and change rooms — exist to offer women protection from men.

She states, "This reality is sex-based, not identity-based."

Further, anyone who believes that choosing one's identity and wanting a specially enshrined protection for that identity will stop at gender is, in this instance, short-sighted. I am the first to decry the slippery slope argument. It is often not helpful, not relevant and based on outlandish hypotheticals. However, there are groups emerging all the time that feel they should have should have been born differently or that they more closely identify with another identity. There are people who in their heart of hearts feel they were meant to have been born a different race. A highly publicized trans-race case was discussed a couple of years ago in the U.S. and has made headlines again this week. The media is largely laughing it off, yet this has been a very real and lifelong struggle for this person.

There was a demonstration on Parliament Hill last year from the "trans-abled" community, a large and growing community of people who feel very strongly that they should have been born disabled, some even altering their physical state to emulate the disability they identify with.

In many definitions of the LGBTQ+, the "+" includes "otherkin," or those who identify as something other than human. This includes identities like "pixiekin" or "wormkind." Are these identities deserving of special protection in law?

Last year I met with an individual — and I've met with many individuals on this bill and on Bill C-279 — named Stef-on-Knee, who is a very prominent leader in the trans movement in Canada. When I met with Stef-on-Knee, a 54-year-old biological male, he told me he identified as a young woman.

Since our meeting, Stef-on-Knee, born Paul, a father of seven, has left his family to live his life in what he claims to be his true identity as a six-year-old girl. Stef-on-Knee has been adopted by a progressive family in Toronto who adopted him to be the younger sister to their seven-year-old girl. While biologically a male adult, this individual identifies as a female child. Through this legislation, we are legitimatizing and protecting Paul's feelings of being female, but not his feelings of being a child. What is the evidence-based rationale? Who are we to say that one is more legitimate than the other? It certainly begs the question, what is next?

Honourable senators, I will finish with this: There are a growing number of people identifying as trans in Canada. Some say they have felt since the time they gained consciousness that they identified more closely with the opposite sex. The reason for their feelings is not yet clear. However, they have been discriminated against, have been bullied and have experienced things likely that no one in this chamber can relate to. They need protection under the law, and the Canadian Human Rights Commission made it abundantly clear that transgender people are covered under existing protections.

Rewriting the law to include gender identity and gender expression has very serious consequences for freedom of speech and freedom of expression, especially when one considers that the theory we are enshrining into law remains just that — a theory, and a flawed one at that. And to label conscientious and intellectual dissenters of this theory as discriminatory, or in some cases hateful, is simply wrong.

For these reasons, I remain starkly opposed to this legislation. However, colleagues, as I do with all legislation, I will recommend that this bill be scrutinized at committee. I believe that this legislation, like all others, deserves the thorough study that it was not afforded in the other place. For that reason, I will not be asking for a standing vote at second reading, but I will agree to passing this bill on division.