Hit & Run

Expanding Transgender Protections in Canada Includes Broadening Terrible Hate Speech Laws

Nobody is helped by the government threatening prison over a debate.

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Justin Trudeau
Credit: Alex Guibord

Canada's government, under the leadership of Prime Minister Justin Trudeau, is using the new round of debates over how to treat transgender citizens to push for expansions in the country's federal antidiscrimination laws.

This push would involve updating the country's laws to add gender identity and expression to antidiscrimination and hate crime rules. But there's more. Unlike the United States, Canada has "hate speech" restrictions on freedom of expression in their country. The proposal in Bill C-16 would add gender identity and expression as protected categories under federal hate speech restrictions as well. CBC News notes:

If passed, the legislation would make it illegal to discriminate on the basis of gender identity or expression. It would also extend hate speech laws to include the two terms.

Criminal laws would also be updated to make it a hate crime when someone is targeted because of their gender identity or gender expression, meaning judges would have to consider it as an aggravating factor in deciding what sentence to impose.

Canada's hate speech law has two notable actionable components. The more severe violation under the law is calling for "genocide," the killing or "physical destruction" of the protected group. A person convicted of such an offense could face up to five years in prison.

The second category will be the one to watch out for in this particular fight (though both categories are bad law). It is also a violation of the country's hate speech laws to communicate statements in any public space that incite "hatred against any identifiable group where such incitement is likely to lead to a breach of the peace… ." Those who violate this category of law face up to two years in prison. There are exceptions in this category for arguments that are founded on religious beliefs and for statements about subjects in the "public interest" that the speaker "on reasonable grounds" believes to be true.

So is publicly worrying that accommodating transgender people in bathrooms will lead to women or girls being assaulted something that counts as "inciting hatred"? One would think that this discussion would not meet such a threshold, but this debate has led to women saying they're being harassed because others mistakenly think they're transgender "intruders." Some people have clearly felt incited to "breach the peace."

That breach, however, is the responsibility of the person acting, not the party speaking. Among the many terrible components of laws against hate speech is that they hold individuals responsible for the choices of other people. Nobody forced some lady at Walmart to confront a stranger in the bathroom. It was her choice. The wording of Canada's hate speech laws assume that people's mean statements can literally strip others of their free will.

And while Canada's laws may have been written in such a way that appears limited, that doesn't mean enforcement is. Prosecutors and judges will be the ones deciding what it means to "incite hatred," and that introduces ambiguity and disagreement. That's a good reason as well to oppose such laws. That it's not possible to easily determine whether opinions in transgender bathroom panic debates would violate this law (or whether a prosecutor or judge might decide it does) is exactly what creates the "chilling" environment that attempts to shut down speech that ought to be protected. Back in 2010, Ann Coulter was warned even before coming to speak at the University of Ottawa that she needed to watch what she said because she could be prosecuted there for hate speech. The letter prompted outrage from Glenn Greenwald back when he was still at Salon, and he warned, "Who would ever want to empower officious technocrats to issue warnings along the lines of:  be forewarned:  if you express certain political views, you may be committing a crime; guide and restrict yourself accordingly?"

His warning from back then is particularly relevant now given that college umbrage-taking has dramatically risen since 2010. There are people out there who want to classify speech that offends them as actual violence. Under such a cultural movement, Canada's hate speech laws are a threat to anybody who holds opinions that the country's most powerful people believe might be disruptive to their idea of "peace."