Keith Mack
In 2017, Canada passed Bill C-16, which amended the Canadian Human Rights Act to include gender identity or expression as identifiable groups protected from discrimination. This bill sparked a debate about whether it would enforce the use of specific pronouns, with critics concerned that citizens would be penalized for not using a person's chosen pronoun. However, legal experts clarified that misusing pronouns alone does not constitute a criminal act, and the law does not specify the use of any particular pronoun. Instead, the focus is on recognizing the right to self-identify one's gender and protecting against discrimination and misgendering, particularly in social areas like employment, housing, and education.
| Characteristics | Values |
|---|---|
| Bill number | C-16 |
| Year passed | 2017 |
| Purpose | To add "gender identity and gender expression" to the list of illegal grounds for discrimination |
| Enforcement | No Canadian has been jailed or fined for using the wrong gender pronoun |
| Hate crimes | If there is evidence that an offence is motivated by bias, prejudice, or hate, it can be taken into account by the courts during sentencing |
| Human rights | The bill enshrines the rights of transgender or gender-diverse Canadians by including them under human rights laws |
| Misgendering | Refusing to refer to a trans person by their chosen name and a pronoun that matches their gender identity is likely discrimination |
| Freedom of expression | Lawmakers and courts recognize the right to freedom of expression, but no right is absolute |
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What You'll Learn
Bill C-16
The bill sparked a national debate, with critics voicing concerns that the law would penalise citizens who do not use specific pronouns when referring to gender-diverse people. However, the bill does not mention pronouns, and legal experts have stated that misusing pronouns alone would not constitute a criminal act. Instead, the bill enshrines the rights of transgender and gender-diverse Canadians by including them under human rights and hate-crime laws.
The Ontario Human Rights Commission (OHRC) has released a policy on preventing discrimination based on gender identity and expression. This policy is not legally binding, but it does state that refusing to refer to a person by their self-identified name and proper personal pronoun can constitute gender-based harassment. The OHRC recommends using "they" if you are unsure of a person's preferred pronoun and simply referring to the person by their chosen name.
While Bill C-16 does not specifically address the use of pronouns, it has become part of a larger conversation surrounding gender, pronoun use, freedom of speech, and the rights of transgender and gender-diverse Canadians. The bill brought federal laws up to date with already-established provincial human rights codes.
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Criminal Code
In June 2017, Canada passed Bill C-16, which added the words "gender identity or expression" to the Canadian Human Rights Act and the Criminal Code. This bill was passed to protect the rights of transgender and gender-diverse Canadians. The bill amended a section of the Criminal Code that deals with hate speech and sentencing for hate crimes. While the Criminal Code does not specifically reference pronouns, the bill has sparked debate about whether it will penalize citizens who do not use specific pronouns when referring to gender-diverse people.
Legal experts have differing opinions on this matter. Brenda Cossman, a law professor at the University of Toronto, asserts that misusing pronouns alone would not constitute a criminal act. She argues that it would not rise to the level of a crime or meet the threshold for advocating genocide, inciting hatred, hate speech, or hate crimes. However, Cossman acknowledges that consistently refusing to use a person's chosen pronoun could potentially be covered under the Canadian Human Rights Act, which protects certain groups from discrimination.
On the other hand, Jared Brown, a commercial litigator who often works on human rights disputes, suggests that while misusing pronouns alone may not be criminal, it could lead to legal consequences. If someone files a complaint about repeated and consistent refusal to use their chosen pronoun, it could progress to a proceeding before a human rights tribunal. If the tribunal rules that harassment or discrimination took place, there would typically be an order for monetary and non-monetary remedies.
The Ontario Human Rights Commission (OHRC) recognizes that misgendering, or refusing to use a trans person's chosen name and personal pronoun that matches their gender identity, is a form of discrimination. The OHRC's policy on preventing discrimination based on gender identity and expression does not specify the use of any particular pronoun but emphasizes the right to self-identify one's gender. The policy also acknowledges that the meaning and use of gender-related terms can evolve over time.
In a notable case in British Columbia, the Human Rights Tribunal ruled in favor of Jessie Nelson, a non-binary and genderfluid restaurant worker who filed a complaint against their former employer for intentionally using incorrect pronouns and gendered nicknames. The Tribunal found that the restaurant's misconduct violated the province's Human Rights Act, affirming that pronouns are a fundamental part of a person's identity and that their proper usage indicates respect for an individual's gender identity.
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Human Rights Act
In Canada, the Human Rights Act does not mention pronouns. However, it does protect certain groups from discrimination. According to legal experts Brenda Cossman and Jared Brown, accidentally misusing a pronoun would not constitute discrimination, but repeatedly refusing to use a person's chosen pronoun might. This could potentially result in jail time, but only through a process that would start with a complaint and progress to a proceeding before a human rights tribunal.
Bill C-16, which came into force in 2017, added "gender identity or expression" to the Canadian Human Rights Act, joining a list of identifiable groups protected from discrimination. This includes age, race, sex, religion, and disability, among others. The bill was intended to protect individuals from discrimination within the sphere of federal jurisdiction and from being the targets of hate propaganda due to their gender identity or expression.
The Ontario Human Rights Commission's (OHRC) policy on preventing discrimination based on gender identity and expression does not specify the use of any particular pronoun. However, it does recognize that everyone has the right to self-identify their gender and that "misgendering" is a form of discrimination. The OHRC recommends that when in doubt, one should ask a person how they wish to be addressed and use "they" if the preferred pronoun is unknown. Simply referring to a person by their chosen name is also considered respectful.
While Bill C-16 has sparked debate over whether it legislates the use of specific pronouns, legal experts agree that the bill does not reference pronouns, and misusing pronouns alone would not constitute a criminal act. The bill's primary focus is on protecting the rights of transgender and gender-diverse Canadians by including them under human rights and hate crime laws.
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Hate speech
In 2017, the Parliament of Canada passed Bill C-16, which amended the Canadian Human Rights Act and the Criminal Code. The bill added "gender identity or expression" to the list of identifiable groups protected from discrimination under the Canadian Human Rights Act. It also amended the Criminal Code's provisions on hate speech and sentencing for hate crimes, including "gender identity or expression" as an identifiable group.
While Bill C-16 does not specifically mention pronouns, it has sparked debate over whether it enforces the use of specific pronouns. Critics argued that the law could penalize citizens who do not use the preferred pronouns of gender-diverse individuals. However, legal experts have clarified that misusing pronouns alone does not constitute a criminal act. Brenda Cossman, a law professor at the University of Toronto, stated that "the misuse of gender pronouns, without more, cannot rise to the level of a crime."
The Ontario Human Rights Commission (OHRC) has also addressed the issue of gender identity and pronouns. The OHRC's policy recognizes that everyone has the right to self-identify their gender and that "misgendering" is a form of discrimination. The policy does not specify any particular pronoun or terminology but provides guidance on respecting the identity of trans individuals.
While there is no federal law in Canada that specifically enforces the use of pronouns, the courts have ruled that misgendering can be considered a human rights violation. In a case involving Jessie Nelson, a non-binary and genderfluid individual, the British Columbia Human Rights Tribunal found that their former employer discriminated against them by intentionally using incorrect pronouns and gendered nicknames. The Tribunal ordered the restaurant to implement a formal pronoun policy and pay Nelson $30,000 in damages.
In summary, while there is no specific Canadian law that enforces the use of pronouns, Bill C-16 and human rights legislation protect individuals from discrimination and hate speech based on gender identity and expression. The courts have interpreted this to include the misuse of pronouns or "misgendering" as a form of discrimination, which can result in legal consequences in certain contexts.
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Discrimination
In 2017, the Parliament of Canada passed Bill C-16, which amended the Canadian Human Rights Act to include "gender identity or expression" among the list of identifiable groups protected from discrimination. This bill also amended the Criminal Code's sections on hate speech and sentencing for hate crimes. While the bill does not specifically mention pronouns, it has been interpreted to include the use of correct pronouns as a way to respect a person's gender identity.
The Ontario Human Rights Commission (OHRC) has a policy that prohibits discrimination and harassment against trans people in employment, services, and other areas. This policy does not specify any particular pronoun but recognises that misgendering, or refusing to use a person's chosen name and pronoun, is a form of discrimination. The OHRC recommends using the pronoun "they" if you are unsure of a person's preferred pronoun and suggests simply referring to the person by their chosen name as a respectful approach.
Legal experts have weighed in on the debate surrounding Bill C-16, with some critics concerned that the law will penalise citizens who do not use specific pronouns when referring to gender-diverse people. However, law professor Brenda Cossman has stated that misusing pronouns alone would not constitute a criminal act. She notes that while the Canadian Human Rights Act does not mention pronouns, it could be considered discrimination or harassment if someone repeatedly and consistently refuses to use a person's chosen pronoun, which could potentially result in legal consequences.
In a 2021 case, the British Columbia Human Rights Tribunal ruled in favour of Jessie Nelson, a non-binary and genderfluid restaurant worker who filed a complaint against their former employer for intentionally using incorrect pronouns and gendered nicknames. The Tribunal found that the restaurant's conduct violated British Columbia's Human Rights Act, affirming that the use of correct pronouns is a fundamental part of respecting a person's identity. This decision set a precedent for recognising the use of correct pronouns as a legal requirement in the workplace to ensure the rights and respect of transgender people.
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Frequently asked questions
In 2017, the Canadian Parliament passed Bill C-16, which added protections on the basis of gender identity and expression to the Canadian Human Rights Act and the Criminal Code. While the law does not specify the use of any particular pronoun, it recognises that everyone has the right to self-identify their gender and that "misgendering" is a form of discrimination.
Discrimination can include refusing to refer to a person by their chosen name and personal pronoun that matches their gender identity.
While the Criminal Code does not reference pronouns, repeated and consistent refusal to use a person's chosen pronoun may constitute discrimination or harassment, which could potentially result in jail time.
