The U of T professor has made claims about going to prison for his beliefs and criminalizing free speech. Here's what the legislation says.
Could Bill C-16 trample free speech and criminalize freedom of expression?
So claims Jordan Peterson, the U of T professor who posted a video lecture online in September that criticized political correctness, and in which he discussed his belief that non-binary identities are invalid.
Peterson has said he would refuse to use gender-neutral pronouns if requested by a non-binary student.
Of the proposed federal Bill C-16, Peterson told the Toronto Sun: “These laws are the first laws that I’ve seen that require people under the threat of legal punishment to employ certain words, to speak a certain way, instead of merely limiting what they’re allowed to say.”
Peterson has also said he believes freedom of speech is under attack in Canada.
What’s the legitimacy to Peterson’s claims about Bill C-16? We fact-checked them.
First things first:
What is Bill C-16?
The bill proposes adding gender identity and gender orientation to the Canadian Human Rights Act. This means that it would become illegal under the Act to deny someone a job or discriminate against them in the workplace based on the gender they identify with or outwardly express.
If passed, the bill would also add gender identity and gender expression to the Criminal Code in two ways:
- Section 718.2 is about what principles should be taken into consideration when a court imposes a sentence.
Section 718.2(a) is about how a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.
Section 718.2(a)(i) speaks about offences where evidence shows that action was motivated by bias, prejudice, or hate based on social groups. This list already includes race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, and sexual orientation.
2. Section 318 is about hate propaganda.
Subsection 318(4) adds gender identity and gender expression to the definition of an identifiable group for the purposes of “advocating genocide.” This legislation would protect transgender and gender non-binary peoples from being a targeted group in an act of genocide.
The House of Commons voted in favour of the bill in October. Next, it will go before the Justice Committee.
What has Peterson said about Bill C-16?
“I think that some of the things that I say in my lectures now might be illegal,” Peterson says in this video (at 17:35). “I think that they might even be sufficient for me to be brought before the Ontario Human Rights Commission under their amended hate speech laws.”
He says he’s concerned that something he says when he’s teaching can be “transformed suddenly into hate speech.”
In a panel discussion on TVO’s The Agenda in October, Peterson said not only would not using someone’s preferred pronouns be considered discrimination under the new human rights legislation, it would be a form of hate speech.
“That’s why I made the video. I said that we were in danger of placing the refusal to use certain kinds of language into the same category as Holocaust denial.”
In the same discussion, he said:
“If they fine me, I won’t pay it. If they put me in jail, I’ll go on a hunger strike. I’m not doing this. And that’s that. I’m not using the words that other people require me to use. Especially if they’re made up by radical left-wing ideologues.”
Analyzing Peterson’s claims
According to Brenda Cossman, a professor of law at the University of Toronto, Peterson is “fundamentally mischaracterizing” Bill C-16.
“I don’t know if he’s misunderstanding it, but he’s mischaracterizing it,” Cossman says.
(Brenda Cossman spoke to Torontoist about this, but you can find what else she’s said on the issue here.)
Cossman says it seems Peterson is trying to argue that the misuse of pronouns could constitute hate speech.
“I don’t think there’s any legal expert that would say that [this] would meet the threshold for hate speech in Canada,” she says.
Our courts have a very high threshold for what kind of comments actually constitutes hate speech, and the nature of speech would have to be much more extreme than simply pronoun misuse, according to Cossman.
“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.”
Cossman, who has participated in a debate with Peterson, takes issue with the way he uses the language to describe what could happen if he was found in violation of the Ontario Human Rights Code.
“If he was found guilty by the Ontario Human Rights Tribunal, he would have been doing something illegal but not criminal,” Cossman says. In other words, he wouldn’t go to jail. Jail is only a punishment for committing a criminal offence—a violation of the Criminal Code.
If Peterson was found to be in violation of the code, there are different possible remedies. He could be ordered to pay money, he could be ordered to correct the behaviour, he could be ordered to go to training, etc.
How does the ORHC’s policy apply to U of T?
The Ontario Human Rights Commission’s Policy on Preventing Discrimination because of Gender Identity and Gender Expression [PDF] outlines best practices for the treatment of transgendered and gender non-binary peoples.
Under this policy, Peterson is responsible for:
- Accepting requests for accommodation in good faith (unless there is
evidence the request is not genuine)
- Making reasonable requests for only information that is necessary to
clarify the nature and extent of the accommodation needed for the situation
- Making sure that information related to accommodation is kept confidential and shared only with people who need the information for their role in implementing the accommodation
- Acting in a timely way and taking an active role in looking for solutions
- Covering any appropriate costs related to the accommodation
The students seeking accommodation are responsible for:
- Telling the accommodation provider (employer, landlord, service provider,
etc.) when they have code-related needs that require accommodation
- Providing information relevant to their needs and meeting any agreed-upon standards once accommodation has been provided
- Cooperating in the accommodation process to the best of their ability
What about corporate liability?
U of T has the “legal duty and ultimate responsibility to maintain an environment free from discrimination and harassment because of gender identity and expression,” according to the Ontario Human Rights Commission’s policy.
Now let’s look at “vicarious liability.” Here’s the definition, from the Ontario Human Rights Code:
“…any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.”
The policy explains further: “Vicarious liability may make an employer responsible for discrimination arising from the acts of its employees or agents, done in the normal course, whether or not it had any knowledge of, participation in, or control over these actions.”
In other words, the University of Toronto could be held accountable for discriminatory actions committed by its employees.
What about the province’s Occupational Health and Safety Act?
All workplaces in Ontario are supposed to develop harassment policies and review them at least once per year. The policies should include protection for gender identity and expression.
The Ontario Human Rights Commission’s policy adds that workplaces should consider, too, developing policies and procedures to address “the specific needs of trans people related to transitioning, identity documents, washrooms and change facilities, privacy and confidentiality, etc….Addressing them will help remove significant barriers for trans people in their daily lives.”
The Criminal Code does not define discrimination. An understanding of discrimination has evolved from tribunal and court decisions.
To establish discrimination a person must show:
- They have a characteristic protected by one or more of the code grounds (e.g. gender identity or gender expression)
- They experienced adverse or negative treatment or impact in one of the social areas under the code (e.g. in accessing a service, housing, or employment)
- The protected characteristic was a factor in the adverse treatment or impact
The claimant must show that more likely than not that negative treatment has happened.
Human rights at the international level
There is a document that establishes international human rights law in relation to sexual orientation and gender identity, but it is not the United Nations’ Universal Declaration of Human Rights.
The policy refers to The Yogyakarta Principles [PDF] as its international human rights law.
These principles were launched in 2007, a joint effort by UN experts, judges, and advocates. They set legal standards for how governments and other bodies should work to ensure equality for LGBTQ people.
Working under that framework, the OHRC’s policy states that a person who has a gender identity different from their birth-assigned sex should be treated according to their lived gender identity.
Some other key takeaways from the OHRC’s Policy on Preventing Discrimination because of Gender Identity and Gender Expression
Trans people may need distinct forms and degrees of accommodation along the way.
“Respect, understanding and confidentiality is everyone’s responsibility during transition and the accommodation process. Organizations should be alert to preventing and addressing any harassment that may happen. Developing policies and training staff will also help prevent problems during transition.”
It’s important to recognize lived gender identity.
“A person’s request should usually be enough.”
A good example of this is the University of Toronto has a policy that allows students to change their name and gender on academic records, class lists, and online student databases by writing a letter to their college registrar, requesting this change. The university requires the student to establish and authenticate their identity.
“A person’s self-identified gender should be accepted genuinely in good faith even if identity documents do not match their lived gender. An organization would need a serious reason to doubt someone’s self-identified gender.”
Lastly, some resources
The Lesbian, Gay, Bisexual, Transgender Resource Center at the University of Wisconsin-Milwaukee has an excellent document that gives some understanding to the importance of correct pronoun use.
The centre says that gender-neutral and gender-inclusive pronouns are the result of languages, like English, not having a gender-neutral or third-gender pronoun.
People who are limited by languages that don’t include gender neutral pronouns have attempted to create them, in the interest of greater equality.
When in doubt, just ask.