Speech at 3rd Reading of Bill C-16 (Gender Identity)
On the Order:
Resuming debate on the motion of the Honourable Senator Mitchell, seconded by the Honourable Senator Gagné, for the third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code.
Hon. Donald Neil Plett: Honourable senators, I rise today to speak at third reading to Bill C-16.
Since I last rose to speak on this topic, we have had an in depth study of this legislation at committee. Witnesses gave impassioned pleas to the committee and made substantive contributions.
This legislation was not studied in the House of Commons, so I would like to start my speech by saying that I am proud of the thorough work that the Senate has done on this legislation to date. If I had to sum up the witness testimony in a few short sentences it could be characterized by the following: Trans people face discrimination and marginalization in Canadian society; this legislation could have a disproportionate impact on women; and, third, the interpretation of this bill and its surrounding policies will likely constitute the most egregious infringement on freedom of speech in Canadian history.
My speech today will focus on this last issue because, colleagues, this cannot be swept under the rug.
I raised this concern — the issue of compelled speech — at second reading, and it was expanded upon in great detail by several witnesses at committee, including litigators, law professors, constitutional experts and a free speech advocate from the transgender community.
Some proponents of the bill have tried to get around this point by stating that there is nothing written in the bill that compels speech. After all, the bill simply adds two grounds — gender identity and gender expression — to the Canadian Human Rights Act and to the Criminal Code.
As the same proponents know, the problem is when we leave the interpretation of these new grounds to the Canadian Human Rights Commission.
Most of us have worked with legislation for long enough to know that the appropriate level of analysis is not the words written on a page. The analysis we must provide, at a most basic level, as legislators, includes how the bill will likely be interpreted and how it will impact Canadians.
As Senator Jaffer stated earlier this week, the minister herself denied the infringement upon freedom of speech by referring to the hate speech provisions in the Criminal Code.
None of the arguments that have been made with respect to the compelling of speech have anything to do with the Criminal Code amendments, despite senators at the table disingenuously claiming that this bill is only about genocide.
One senator, who I respect immensely, was furious at two witnesses who testified about the infringement upon freedom of speech, implying that they were okay with inciting genocide of trans people. This was truly appalling, and I received letters from both witnesses afterwards, one of whom is a trans woman, about the treatment that they received from this senator and the insinuations he had made. The two were just there to talk about the impact this legislation would have on freedom of expression.
I cannot believe that I would even need to say this, but let me be perfectly clear: Opponents of the legislation, including myself and witnesses who appeared at committee, do not believe in discrimination against transgender people and do not believe in the promotion of genocide of transgender people. The insinuation is absurd and insulting.
However, as I said, it is clear that the minister does not even understand the "compelled speech" concern raised repeatedly by legal experts at committee as she responded by making reference to the hate speech provisions in the Criminal Code.
For Canadians who are paying attention and who still have questions about how the words on the page in front of us get us to compelled speech, let me explain. The origins of Bill C-16 can be found in the same legislation at the provincial level, including the Ontario Human Rights Code. When a new ground of protection is added to the Canadian Human Rights Act, like the Ontario Human Rights Code, the respective commissions are tasked with setting the surrounding policies and guidelines.
There is a long documented history of the federal policies mirroring those found at the provincial level when interpreted by the commission. With respect to this particular bill, the government's intention was made expressly clear through a Department of Justice review of Bill C-16 published on their website. The review includes a question and answer section in which the government 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.
Colleagues, this statement of intent is perfectly clear. The Ontario Human Rights Commission 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 personal pronoun.
With the passage of Bill C-16 in its current form, if one encounters a person in a sphere of activity covered by the federal code and addresses that person by a pronoun that is not the chosen personal or preferred pronoun of that person, your action can constitute discrimination.
As Jared Brown stated in his legal analysis, "In the event that your personal or religious beliefs do not recognize genders beyond simply male and female (for example, your beliefs do not recognize non-binary, gender neutral or other identifies), you must still utilize the non-binary, gender neutral or other pronouns required by non-binary or gender neutral persons, lest you be found to be discriminatory."
The pronouns I am referring to include words like "zi," "zir," "they," et cetera, but the list is truly infinite as the pronouns accompany the 70-plus genders that exist to date. Any such pronouns are at the sole discretion of the non-binary or gender non-conforming individual.
These are words that are not yet even in the dictionary. Nevertheless, this is effectively changing language by statute, which means that language is now in the purview of the state.
Honourable senators, this is so wrong in a free country. When Jared Brown testified before committee on freedom of expression issues, he stated:
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, honourable senators, 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.
Some proponents have claimed this issue to be a red herring, stating things like "Professor Jordan Peterson would never actually find himself before the courts for his stance on the gender spectrum or for failing to use a gender neutral pronoun."
With respect, this is simply incorrect. First, Professor Peterson made his initial video stating he would not use the zie or zir pronouns, language that he regards as part of an ideological linguistic vanguard.
The University of Toronto's legal department — not an administrator — sent him two letters ordering him to cease and desist in his public utterances because they believed he was not only violating the university's standards of conduct but was also violating the relevant provisions of the Ontario Human Rights Commission.
As Professor Peterson said in committee:
. . . 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.
Second, as Professor Peterson publicly criticized the Ontario policy, the OHRC clarified its policy with respect to pronoun use and went even further by setting out the following:
. . . 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.
So what is the big deal? What happens to an individual who is found to be discriminatory by the Human Rights Tribunal? There are a number of possible sanctions the tribunal can order, including both monetary and non-monetary orders. Non-monetary orders can include forced apologies, gag orders, publication bans and orders to undertake sensitivity and anti-bias training.
If you, as an intellectual dissenter, fail to complete one of these reprehensible and backward court orders, the likely consequence is prison time. In fact, failure to comply has led to jail time at both provincial and federal levels. This is truly outrageous. It is particularly appalling when it comes to an issue like this, when we are talking about a new ground that is not based on immutable characteristics but on a social science theory about social construction and a spectrum of gender.
While I knew why I would be reluctant to undergo court-mandated sensitivity training, I asked Dr. Peterson to elaborate why someone like him who dissents as an intellectual and as a practitioner would have an objection to taking such training. His answer was rather enlightening:
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 . . . .
He later continued:
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 . . . altered by collective fiat.
Honourable senators, language evolves as we use it and as it becomes relevant in a modern society. Think of the word "Ms." The term was born out of a need to fix a clear problem. Many women didn't want their marital status unnecessarily disclosed, and wanted the option to not define themselves based on their marital status. This was a natural societal evolution, and the language evolved organically. It did not evolve by legal force.
Some senators tried to call into question the certainty of these policies by highlighting other segments of the incoherent Ontario Human Rights Code that were less specific than the clauses I read out. The fact that the policy is full of internal contradictions does not make for a strong argument, especially considering that the most detailed guidance was clarified after Jordan Peterson rose to public consciousness.
On this point, University of Toronto Professor Brenda Cossman, a proponent of the bill and a witness at committee, has said this regarding Bill C-16:
. . . pronoun misuse may become actionable, through Human Rights Tribunals and courts.
Another supporter of the bill, Law Professor Kyle Kirkup, answered a question about a person who wants a non-traditional pronoun used, and whether that person would have a case before the Human Rights Commission. Kirkup replied with this:
So we haven't seen cases on that at this point, but I would say absolutely . . .
Honourable senators, there is another concept that came up a lot at committee, and that is the notion of respect. We do not legislate respect, honourable senators. Respect is earned. It is ludicrous to suggest that it is harassment to refuse to refer to an individual by a made-up word that they have chosen for themselves.
On this point, constitutional expert Jay Cameron weighed in:
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.
Professor Peterson also weighed in on the question of respect:
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.
Personal or intellectual dissenters of the gender spectrum theory or the social constructionist viewpoint would not be afforded any special accommodation. Even though the science is overwhelmingly in favour to the point where the social constructionist theory has been all but disproven, the law would not accommodate this perspective. The law and its future interpretation will only accommodate proponents of the flawed and self-contradictory social science theory of the infinite gender spectrum.
This is the same theory that is predicated on the notion that sex, sexual orientation and gender identity all vary independently of one another and, thus, that one has no influence on the other.
There are lots of valid reasons to not want to use ideologically driven gender-neutral language, and none of them have to do with a regressive, backward or ignorant perspective.
Evolutionary biology professor Dr. Gad Saad told the committee that the tenets of evolutionary biology — namely, the scientifically proven distinctions between men and women — are already viewed as micro-aggressions and as systemic violence on some university campuses.
From a scientific and academic perspective, he has grave concerns with being forced to use gender-neutral language that implies a passive endorsement of this theory.
Likewise, Theryn Meyer told the committee:
As a trans woman myself, I take advantage of the freedom of speech that this amazing country has granted me to argue for tolerance and understanding for my fellow man, and to explore how best to negotiate integration of my transgender brothers and sisters into society.
Meyer later stated:
The reason I am here is because I have witnessed first-hand the unprecedented ideological motivations behind the terms being used, the way they're used and the way they are defined.
The question that we need to consider is whether the benefits of this legislation outweigh the drawbacks. In my opinion, given that the Canadian Human Rights Commission has already stated that trans people are protected in Canadian human rights law, and given the impending outrageous infringement on freedom of expression, the answer is clear.
However, I know that there are members of the trans community who feel that the passage of this legislation will be the final piece of the puzzle in Canada's multi-jurisdictional human rights regime. Many also feel that the symbolic gesture of this legislation means that Canada is recognizing the legitimacy of transgender people as equal under the law.
Honourable as those goals may be, they do not detract from the problem that we have before us. We do not have the wherewithal to define the surrounding policies and guidelines in this place, but we can make Parliament's intent clear. As Senator Baker has pointed out a number of times, the courts constantly make reference to the Senate when determining Parliament's intent. In this case, we have an obligation to make our intention clear, or make no mistake, we will have compelled speech at the federal level upon the passage of this bill.
Witnesses pleaded with us to make an amendment. The minister herself said this legislation is not intended to compel speech. For that reason, the government should have no problem accepting an amendment in this regard and, in fact, should welcome it.
In committee, Senator Pratte stated to Queen's law professor Bruce Pardy:
. . . there is nothing in the legislation that mandates pronouns or nouns. There is nothing in the legislation that says that.
Professor Purdy responded with this:
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.
Let's make our intention clear.
Before I conclude, I need to make reference to a couple of issues that tremendously disappointed me at committee.
I already spoke of the one incident in which a senator angrily replied that the witnesses were okay with the incitement of genocide of transgender people. But later, I wanted to append an observation stating the following:
The committee heard from witnesses who raised serious concerns regarding interpretations of this legislation by the Canadian Human Rights Commission, specifically with respect to the compelling of gender-neutral speech from persons who may or may not subscribe to this particular theory of gender.
I felt that it would be a gross mistake on the part of the committee to not include a note about the very serious concerns raised about compelled speech.
The arguments put forward by some esteemed members of the committee were that we did not want to imply that there was any credibility or validity to the arguments raised by the six experts who raised these concerns.
I found this fascinating. The senator who raised this point was not even present for the meeting on compelled speech, and it was even more surprising that not one senator could come up with a single argument to dispute these claims. That is very telling.
Senator Joyal's argument against this observation was not that there were not valid concerns, but that if we were putting in observations every time we have serious concerns, we would have too many observations. And Senator Mitchell's objection was that we would be giving credence to these concerns without giving similar credence to the proponents of the bill.
As I stated then, the committee's passing of the bill without amendments was a fairly good indicator that the proponents' testimony was heard. This bizarre attempt to pull the wool over the eyes of Canadians on this issue is disturbing, to say the least.
I asked Senator Harder last week about why the Department of Justice web page linking Bill C-16 to the reprehensible Ontario policies disappeared mysteriously after Peterson's concerns gained traction. I am looking forward to receiving that answer as to why, and at whose direction, the page was removed. As one witness pointed out, this page was really the smoking gun.
The concern is not hypothetical, as some have tried to suggest. It is very real. As we know, many proponents are acknowledging this is precisely how the legislation will be interpreted. They just somehow manage to believe that giving language control over to the state is a good idea. It is happening currently at the provincial level, and based on the statement of intent from the government and the usual course of federal human rights policies mirroring their provincial equivalents, we have absolutely every reason to suspect a similar interpretation at the federal level.
All we have to do is make our intention clear.
When Senator Joyal asked Professor Bruce Pardy about letting the courts decide whether there is an infringement on freedom of speech rather than introducing a clarifying amendment, Professor Pardy responded:
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.
Colleagues, Canadians are watching. There is a reason that thousands of people tuned into the particular committee hearing on compelled speech live, and over 400,000 people have watched the hearing on YouTube since. Canadians are concerned, engaged and paying attention. They are listening today. In fact, in my eight years in the Senate, I have never seen such a strong and engaged response from Canadians of all political stripes who are concerned about this infringement on their freedom of speech and the general precedent this represents. If you believe in sending a strong message to the Canadian Human Rights Commission that Canadians should be free from having to mouth opinions and ideologies that are not their own, while enshrining explicit protection for trans people under the law, I look forward to your support on the following amendment.
I will leave you with one final comment from Professor Pardy at committee:
. . . 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.
Hon. Donald Neil Plett: Therefore, honourable senators, in amendment, I move:
That Bill C-16 be not now read a third time, but that it be amended on page 2, by adding the following after line 3:
"2.1 The Act is amended by adding the following after section 4:
4.1 For greater certainty, nothing in this Act requires the use of a particular word or expression that corresponds to the gender identity or expression of any person.".