Free Speech for Zi – The Weekly Standard

Bill C-16, which recently received Royal Assent and will soon become law, is the most recent bill to threaten free speech and to mandate that individuals adopt a social constructionist philosophy of gender. Those who refuse to use gender neutral pronouns such as they or zi and zir, or who oppose the notion that gender is subjectively determined, may find themselves facing the full force of federal law. The federal statute is akin to existing provincial laws in Canada and municipal laws in the United States, and demonstrates a disconcerting turn toward compelling speech and ideology. Laws that protect people from discrimination need not infringe on free speech or individual rights. However, Bill C-16 risks crossing the line into coerced speech for favored groups at everyones expense.

The bill itself looks quite innocuous. It makes three alterations to federal law. Two are amendments to the Criminal Code to include "gender identity" and "gender expression" to the groups protected from hate propaganda, and to include gender identity and gender expression as an aggravating factor. That is, if a crime is committed against a transgender individual and there is evidence that the crime was done due to the individuals gender identity or gender expression, the defendant may be given a harsher sentence.

Serious restrictions on free speech come with changes to the Human Rights Act to include gender identity and gender expression to the list of groups protected from discrimination. Previously, discriminatory practices did not include failure to refer to an individual by their preferred name. Rather, they included denying someone public employment due to their race, gender, sexual orientation.

Now, particular courts may find that individuals who do not use preferred pronouns guilty of discrimination as well. Precise grounds for discrimination are not laid out in the legislation. Rather, according to Canadas Department of Justice, 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. An individual accused of discrimination can be named in a complaint with the Canadian Human Rights Commission and then be tried and fined by the Canadian Human Rights Tribunal.

This is not at all far-fetched, given the precedent of the provincial courts where this kind of legislation already exists. Even supporters of Bill C-16 have been forthcoming about this possible interpretation of discrimination by the Human Rights Tribunal. University of Toronto law professor Brenda Cossman wrote, Non-discrimination on the basis of gender identity and expression may very well be interpreted by the courts in the future to include the right to be identified by a persons self-identified pronoun.

Theryn Meyer, a political commentator on YouTube who focuses on transgender issues, critiqued Bill C-16 for claiming to benefit transgender individuals while infringing on everyones right to free speechtransgender people included. She noted that transgender individuals are already protected under the laws against discrimination, which do not infringe anyones rights.

Everyone who cares about free speech should be concerned that this prima facie benevolent legislation actually harms everyone who wishes to practice their right to free speech.

Provincial law in Canada has prohibited discrimination on the basis of gender identity and gender expression for years. The Ontario Human Rights Commission (OHRC) added "gender identity" and "gender expression" to the listed of protected groups in 2012. The OHRC defined gender identity as "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 persons gender identity may be the same as or different from their birth-assigned sex.

As with the federal law, the problem arises with the definition of discrimination: "Refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity, or purposely misgendering (using a pronoun that is not ones preferred pronoun), will likely be discrimination when it takes place in a social area covered by the Code, including employment, housing and services like education."

Individuals who refuse to use made-up words, who refuse to endorse a social constructionist philosophy of gender, who refuse compelled speech and ideology can be brought before the Ontario Human Rights Tribunal and severely fined. Professor Jordan Peterson, a University of Toronto psychologist, came under fire last fall when he made a YouTube video saying that he would not use made-up gender pronouns. The University sent him a letter requesting that he stop making such videos because he was expressing an intent to violate the law. Ontario human rights commissioner Renu Mandhane suggested that Peterson might be liable under the law, but no action has been taken.

This kind of legislation has already made its way into the United States. In the District of Columbia, the Office of Human Rights, which enforces the D.C. Human Rights Act, prevents discrimination on the basis of gender identity and has recently stated that Deliberately misusing a persons preferred name or pronoun may be considered unlawful harassment.

In New York City, the Commission on Human Rights Legal Enforcement requires employers and covered entities to use an individuals preferred name, pronoun and title (e.g., Ms./Mrs.) regardless of the individuals sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individuals identification. The legislation states, Some transgender and gender non-conforming people prefer to use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir. Failure to comply can result in, civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct.

If each person is allowed free speech, then surely each person should be able to decide for him or herself whether or not to act out a radical social constructionist philosophy of gender. However, each of these laws, regardless of their intent to benefit transgender people, infringes individual liberty. They require not only that people use government approved speech, but that they adhere to a government-approved ideology. They are coercive intrusions by the government into the speech of individuals. Protections for transgender individuals can and should be accomplished without infringing on everyones rights.

Max Diamond is a writer and editor in New York.

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Free Speech for Zi - The Weekly Standard