Bill C-1: Protecting Canada’s Diverse Gender Identities
By Jinny Kim
This September, a University of Toronto professor released an online lecture series that led to heated debates and protests about gender identity. In the lectures, Professor Jordan Peterson expressed frustration regarding requests to use alternative pronouns, such as “ze” and “zir,” which some use in place of “she” and “he.” He also criticized proposed legislation that prohibits gender-based discrimination.[1] Bill C-16[2] amends the Canadian Human Rights Code[3] and the Criminal Code[4] to include gender identity and expression as prohibited grounds of discrimination, thereby protecting transgender and gender non-conforming individuals through a legal framework.
The bill echoes the New York City Human Rights Law[5] in which gender identity is a protected class. The New York City Commission on Human Rights, which enforces the city’s human rights law, sets out specific guidelines as to what constitutes discrimination based on gender identity and expression. Potential violations include the intentional misuse of preferred pronouns of transgender employees by employers[6].
Criticisms of such laws are that they enforce the use of different preferred pronouns and may criminalize pronoun misuse.[7] Some critics, like Dr. Peterson, go as far as to suggest that such legislation conflicts with freedom of expression, and that refusing to use alternative pronouns could easily be construed as hate speech under the legislation.[8]
To analyze the implications of such laws, we may turn to what international human rights bodies have said on the matter. In 2011, the United Nations Human Rights Council adopted a resolution that cautioned against violence and discrimination based on gender identity.[9] The United Nations Office of the High Commissioner for Human Rights published a report setting out the legal obligations of governments “to safeguard the human rights of LGBT and intersex people” according to the “Universal Declaration of Human Rights and subsequently agreed international human rights treaties.”[10] The UN Human Rights Council has recently adopted additional resolutions and updates on this subject.
Bill C-16 and similar legislation can thus be seen as governments attempting to meet their international commitments to protect the rights of transgender people. The intent of these laws is to provide equality for all, regardless of gender identity, as well as to “[expand] the scope of… gender-based protections” to prohibit discrimination.[11] With these goals in mind, it seems highly unlikely that individuals will be charged with hate speech simply for mistaking a pronoun. Furthermore, Bill C-16 could raise awareness about gender-based discrimination, a logical and much-needed step for Canada’s ever-more gender diverse population.
[1] Jessica Murphy, “Toronto Professor Jordan Peterson takes on Gender-neutral Pronouns,” BBC News (4 November 2016)
[2] Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, 1st Sess, 42nd Parl, 2016.
[3] Canadian Human Rights Act, RSC 1985, c H-6.
[4] Criminal Code, RSC 1985, c C-46.
[5] Commission on Human Rights, NYC Admin Code §8-102(23) (2006).
[6] New York City Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression, 2002 NYC Local Law No 3, NYC Admin Code § 8-102(23).
[7] Eugene Volokh, “You can be Fined for Not Calling People ‘Ze or ‘Hir,’ if that’s the Pronoun they Demand that You,” The Washington Post (17 May 2016)
[8] Supra note 1.
[9] UN Human Rights Office of the High Commissioner, Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law (New York: United Nations 2012)
[10] Ibid at 10.
[11] Supra note 2.
