Gavin Howe
In 2017, Canada passed Bill C-16, which amended the Canadian Human Rights Act and the Criminal Code to include gender identity and gender expression in matters of discrimination. This bill sparked a larger conversation surrounding gender, pronoun use, freedom of speech, and the rights of transgender and gender-diverse Canadians. While critics argued that the law would penalize citizens for not using specific pronouns, legal experts clarified that misusing pronouns alone does not constitute a criminal act or hate speech under Canadian law. However, deliberate misgendering in certain contexts, such as the workplace, has been ruled as a human rights violation by Canadian courts. This ruling set a precedent that public entities and their employees cannot maliciously misgender individuals, with consequences for creating a discriminatory environment.
| Characteristics | Values |
|---|---|
| Year of passing the bill | 2017 |
| Bill number | C-16 |
| What the bill added | "Gender identity or expression" |
| Where it was added | Canadian Human Rights Act, Criminal Code (hate speech and sentencing for hate crimes) |
| What the bill changed | Became part of a larger conversation surrounding gender, pronoun use, freedom of speech, and the rights of transgender and gender-diverse Canadians |
| What the bill protects against | Discrimination |
| What the bill doesn't do | Legislate the use of certain language |
| What the bill doesn't criminalize | Misuse of gender pronouns |
| What the bill recognizes | Right to freedom of expression |
| What the bill upholds | Constitutionality of the Code provision relating to hate speech and publications |
| What the bill doesn't uphold | Language of the Code provision, relating to "ridicule, belittlement and affront to dignity" |
| What the bill proposes | Three new offences: advocating genocide, publicly inciting hatred in a way likely to lead to a breach of the peace, and wilfully promoting hatred |
| What the bill restricts | Publication and public expression of messages intended to incite hatred towards members of particular groups |
| What the bill imposes | Criminal sanctions against anyone who wilfully promotes genocide or incites hatred in public |
| What the bill contains | Defences for the respondent to a complaint |
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What You'll Learn
- Bill C-16 amends the Criminal Code to include gender identity and expression in matters of discrimination
- The bill also allows for more severe sentencing if an offence is motivated by bias, prejudice, or hate based on gender identity or expression
- Deliberate misgendering in the workplace is a human rights violation, per a Canadian court ruling
- Critics voiced concerns that the law will penalize citizens who do not use specific pronouns when referring to gender-diverse people
- Legal experts assert that misusing pronouns alone does not constitute a criminal act or rise to the level of hate speech
Bill C-16 amends the Criminal Code to include gender identity and expression in matters of discrimination
In 2017, the Parliament of Canada passed Bill C-16, which amended the Canadian Human Rights Act and the Criminal Code to include gender identity and expression in matters of discrimination. The bill was introduced by Justin Trudeau's Liberal government on May 17, 2016, as part of the first session of the 42nd Parliament. It passed in the House of Commons by 248–40 votes and in the Senate by 67–11 votes, with three abstentions. The bill became law upon receiving royal assent on June 19, 2017, and took immediate effect.
The bill added the words "gender identity or expression" to the Canadian Human Rights Act, joining a list of identifiable groups protected from discrimination, including age, race, sex, religion, and disability. It also amended the Criminal Code, adding "gender identity or expression" to sections dealing with hate propaganda, incitement to genocide, and aggravating factors in sentencing for hate crimes. These amendments were made to sections 318 and 718.2 of the Criminal Code, which address hate propaganda offences and sentencing provisions, respectively.
The inclusion of "gender identity or expression" in the Canadian Human Rights Act and the Criminal Code was intended to provide explicit protections for transgender and other gender-diverse individuals. These protections aim to ensure that all individuals have equal opportunities to live and work in an inclusive society, free from discrimination and violence. The amendments address concerns regarding wilful promotion of hatred and discrimination based on gender identity or expression, which are considered justifiable limitations on freedom of expression.
While Bill C-16 does not reference specific pronouns, the Ontario Human Rights Commission (OHRC) has stated that refusing to refer to a transgender person by their chosen name and personal pronoun that matches their gender identity, or purposely misgendering, is likely to be considered discrimination in areas covered by the Code, including employment, housing, and education. However, legal experts have clarified that misusing pronouns alone would not constitute a criminal act under the Criminal Code, as it does not mention pronouns. The OHRC recommends that when in doubt, individuals should use the pronoun "they" if the preferred pronoun is unknown, and that referring to someone by their chosen name is always respectful.
Bill C-16 has sparked conversations surrounding gender, pronoun use, freedom of speech, and the rights of transgender and gender-diverse Canadians. It has been described as bringing the federal human rights code into alignment with protections already in place at the provincial level.
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The bill also allows for more severe sentencing if an offence is motivated by bias, prejudice, or hate based on gender identity or expression
In 2017, Canada passed Bill C-16, which added protections on the basis of gender identity and expression to its existing nondiscrimination and hate crimes laws. The bill also allows for more severe sentencing if an offence is motivated by bias, prejudice, or hate based on gender identity or expression. This means that if someone is discriminated against or targeted because of their gender identity, the courts can take this into account during sentencing, potentially leading to increased penalties for the offender.
The bill amended the Canadian Human Rights Act by adding "gender identity or expression" to the list of prohibited grounds for discrimination. This makes it illegal to deny services, employment, accommodation, or other benefits to individuals based on their gender identity or expression. It also added "gender identity or expression" to the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and sentencing for hate crimes.
The addition of "gender identity or expression" to these laws means that offences motivated by bias, prejudice, or hate towards individuals based on their gender identity or expression will be considered an aggravating factor in sentencing. This could result in longer prison sentences, higher fines, or other enhanced penalties for offenders.
It's important to note that the law does not criminalize the misuse of gender pronouns alone. However, deliberate and repeated misgendering, especially in professional contexts, can be considered discrimination and may contribute to a pattern of discriminatory behaviour that could be prosecuted under the law.
While there may be concerns about freedom of speech, Canadian courts recognize that no right is absolute. Expression may be limited when it violates criminal law, such as in cases of hate speech or hate crimes. The bill aims to protect the rights of transgender and gender-diverse Canadians while also upholding freedom of expression.
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Deliberate misgendering in the workplace is a human rights violation, per a Canadian court ruling
In 2017, the Parliament of Canada passed Bill C-16, which added protections on the basis of gender identity and expression to its existing nondiscrimination and hate crimes laws. This bill amended the Canadian Human Rights Act and the Criminal Code, making it illegal to deny employment to individuals based on their gender identity or expression.
In October 2021, a Canadian court ruled that deliberate misgendering in the workplace is a human rights violation. The British Columbia Human Rights Tribunal ruled in favor of Jessie Nelson, a restaurant worker who filed a complaint against their former employer, Buono Osteria. Nelson, who is nonbinary and genderfluid, claimed that the restaurant discriminated against them by intentionally using incorrect pronouns and gendered nicknames such as "sweetheart" and "honey". The Tribunal representative, Devyn Cousineau, found that the restaurant's alleged misconduct violated British Columbia's Human Rights Act. She wrote that pronouns are "a fundamental part of a person's identity" and that their proper usage indicates "that we see and respect a person for who they are."
This ruling set a precedent that public entities and their employees cannot maliciously misgender people. If they do, any future case will be ruled against them, and they will be forced to remedy the situation. This law does not apply in social contexts, only professional ones, and it is not something that is automatically enforced. The victim of discrimination must file a lawsuit.
While this ruling specifically addresses the use of pronouns, it is important to note that refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity can also be considered discrimination when it takes place in a social area covered by the Code, including employment, housing, and services like education.
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Critics voiced concerns that the law will penalize citizens who do not use specific pronouns when referring to gender-diverse people
Critics have expressed concerns that Canada's hate speech laws, particularly Bill C-16, will penalise citizens who do not use specific pronouns when referring to gender-diverse individuals. This bill, passed in June 2017, amends the Canadian Human Rights Act and the Criminal Code to include "gender identity and expression" as protected grounds. While the bill aims to protect the rights of transgender and gender-diverse Canadians, critics worry that it could lead to legal repercussions for those who misgender individuals unintentionally.
The debate surrounding the bill centres on the potential conflict between freedom of speech and the rights of transgender and gender-diverse individuals. Critics argue that the law could infringe on an individual's freedom of speech by criminalising the misuse of pronouns. Legal experts, however, provide reassurance that misusing pronouns alone does not constitute a criminal act under the Criminal Code. Brenda Cossman, a law professor at the University of Toronto, describes the jurisdiction of the law as "very narrow", indicating that it focuses on advocating genocide, inciting hatred, hate speech, and hate crimes.
To address these concerns, it is important to understand the scope and limitations of the law. The law does not specify the use of particular gender-neutral pronouns, recognising that terminology can evolve over time. Additionally, the law applies specifically to social areas covered by the Code, including employment, housing, and services like education. It is unlikely to impact social interactions outside of these contexts. Furthermore, the law requires that the misgendering is deliberate, and the plaintiff must establish a clear pattern of behaviour and provide evidence of attempts to inform and correct the accused.
While critics worry about potential penalties, the focus of the law is on preventing discrimination and ensuring respect for gender-diverse individuals. The Ontario Human Rights Commission recommends simply referring to an individual by their chosen name if unsure of the preferred pronoun, as a respectful approach. The law aims to protect the rights of gender-diverse Canadians and provide legal recourse in cases of deliberate and discriminatory misgendering, particularly in professional environments.
In conclusion, while critics have raised valid concerns about the potential impact of Canada's hate speech laws on pronoun usage, the focus of the law is on protecting the rights of gender-diverse individuals and addressing deliberate discrimination. The law does not aim to penalise citizens for unintentional misgendering but rather to promote respect and equality for all Canadians, regardless of gender identity or expression.
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Legal experts assert that misusing pronouns alone does not constitute a criminal act or rise to the level of hate speech
In 2017, the Parliament of Canada passed Bill C-16, which added "gender identity or expression" to the Canadian Human Rights Act and the Criminal Code. This bill was introduced to provide greater protection to transgender and gender-diverse Canadians and ensure their rights. The bill amended the Canadian Human Rights Act by adding "gender identity or expression" as a prohibited ground of discrimination, making it illegal to deny services, employment, accommodation, and similar benefits based on one's gender identity or expression.
While the bill addresses the misuse of pronouns, legal experts assert that misusing pronouns alone does not constitute a criminal act or rise to the level of hate speech. Brenda Cossman, a law professor at the University of Toronto, states that "the misuse of gender pronouns, without more, cannot rise to the level of a crime." She clarifies that it does not meet the threshold of advocating genocide, inciting hatred, hate speech, or hate crimes. This perspective is shared by Jared Brown, a commercial litigator who often handles employment law and human rights disputes.
Cheryl Milne, the director of the Asper Centre for Constitutional Rights at the University of Toronto, supports this view. She explains that while the malicious use of misgendering pronouns could be part of the evidence demonstrating an overall pattern of discrimination, sending someone to jail is not a possible outcome for human rights complaints. Milne emphasizes that "if it's just the pronoun, not much is going to happen."
It is important to note that deliberate misgendering in certain contexts, such as the workplace, can be considered a human rights violation. A Canadian court ruled in favor of Jessie Nelson, a restaurant worker who filed a complaint against their former employer for intentionally using incorrect pronouns and gendered nicknames. The British Columbia Human Rights Tribunal found that the restaurant's conduct violated the province's Human Rights Act, recognizing that pronouns are fundamental to a person's identity and that their proper usage indicates respect for an individual's true self.
In conclusion, while Bill C-16 and Canada's hate speech laws aim to protect transgender and gender-diverse individuals, legal experts agree that the misuse of pronouns alone does not constitute a criminal act or hate speech. However, deliberate misgendering in specific contexts can still be considered a human rights violation, and individuals have the right to take legal action through established avenues.
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Frequently asked questions
Yes, in 2017, the Parliament of Canada passed Bill C-16, which added protections on the basis of both gender identity and expression in its existing nondiscrimination and hate crimes laws.
Bill C-16 is an amendment to the Canadian Human Rights Act and the Criminal Code that includes "gender identity and gender expressions" in matters 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, will likely be discrimination.
The entity providing services could have to pay damages or send the concerned worker to sensitivity training, but not without other proof of discrimination.
No, misusing pronouns alone would not constitute a criminal act. However, it could be used to highlight a wider pattern of discrimination.
