Canada's Original Think Tank

Third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code

Third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code

Third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code

Third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code

Published on 15 June 2017
Hansard and Statements by Senator Lillian Eva Dyck

Hon. Lillian Eva Dyck:

Honourable senators, I rise today to speak on Bill C-16. I wasn’t really intending to do so, but I felt compelled to speak about it. I feel very honoured to follow the previous speakers as a scientist, and now a senator, debating from a different kind of platform.

Today I wanted to focus on the aspect of compelled speech and freedom of speech, which is pretty much what our colleague Senator Joyal has just done, and what this means in terms of the balance of rights between a person who might identify as a transgender individual versus someone else who is interacting with that individual.

The phrase “compelled speech” is an intriguing one. What does it actually mean? I don’t think people really understand what that phrase means. In some sense, I think that’s probably a deliberate tactic. That phrase has been invented to convey the concept that you’ll be compelled to call a transgender individual by a pronoun like “zi” or “zir,” or some of these other ludicrous pronouns, frankly, that no one has or even heard of until the last two months.

In fact, it reminds me of the phrase that has been touted here before, namely, “unborn child.” What is an unborn child? An unborn child is a fetus, but if you use the phrase “unborn child,” it sounds much more alive than if you use the word “fetus.”

Words convey certain meanings and invoke certain ambiguity in the individual. With “compelled speech,” we all rise up and say, “No one is going to compel me to say or do something that I don’t want to.” We kind of get our backs up and say that it’s infringing upon my rights as an individual to say what I wish to say.

As other senators have said previously, there’s nothing in Bill C-16 that will force someone to call a transgender individual by any of these unusual pronouns. But “compelled speech” is really talking about limiting free speech. It’s really an aspect of freedom of speech. I think what we need to consider when we talk about freedom of speech is what Senator Joyal has just said, namely that it is a balance. When you’re speaking, you are speaking to someone in a dialogue. It isn’t just about your rights but also about the rights of the person to whom you’re speaking and having a conversation. It’s a very important aspect of the bill.

It really bothered me when I thought about this aspect of “compelled speech” and the amendment. Frankly, I didn’t vote for the amendment. I was against it, but later I thought that if we had accepted the amendment, it would be a bit dangerous because it would then validate that concept that somehow there is such a thing as “compelled speech.” So I think it was good that the amendment was not incorporated because it validates a nebulous concept, which is misleading.

Senator Joyal also said that when it comes to “gender identity,” this is not just two words. This is very important. Every single human being has a gender and sexuality. That is essential to who you are. For a transgender individual, their gender identity is as important to them as it is to us, but they’re being singled out because they don’t fit into this illusion of a binary concept of just being male or female. For example, for a male, if you call a man “her” or “she” or you call him “nancy,” that’s usually interpreted as an insult. If you continue to call that man “nancy” or “she,” then you continue to insult that man because I think the man would like to be called by the proper pronoun.

Similarly for me, as a woman, if someone calls call me “he” — and my hair is short, so sometimes I am called “he” — the person is apologetic because they didn’t want to insult me. If they continue to call me “he,” however, then I know it’s an insult. I would say, “I am a woman. I would like you to call me by the proper pronoun.” If you continue to do that to me, I would consider that harassment and I could probably file a harassment case under the human rights laws. The important thing to remember in human rights law is that perception is vital. The perception of the person who feels they are being harassed is vital.

So the perception of the transgender individual is that for a trans woman to be called “he” repeatedly is a putdown, like it would be to call me “he.” You know by the person’s body language and by their reaction that it’s offensive and an insult. That person would then say, “Please don’t call me that. If you continue to do that, it is most definitely a case of harassment.”

Honourable senators, it’s very important that we remember that gender identity is a key component of who we are as human beings, and this idea of perception is key to the issue of harassment and discrimination. I think Senator Joyal talked to you about this when he said, “We have to put it into the proper context.” Perception is a key concept that must be considered because perception of harassment is the key to understanding the dynamics of harassment between what could be called the harasser and the victim.

This concept of perception is also critical to understanding the concept of freedom of speech. As pointed out earlier, freedom of speech does have limits. There is no such thing as complete freedom of speech. We always have to balance it with the rights of the person with whom we’re having a conversation and with their right to live the life that they can lead in this society, free from harassment.

Even here, in the chamber, we do not have unlimited freedom of speech. Our Rules do not permit unparliamentary language, or sharp or taxing words. We do that so we can have proper conversations and so that we’re not unwittingly putting down another senator. We always call each other “honourable senators,” or “senator,” or “honourable colleagues.” We don’t call each other formally by our first names here in the chamber.

As an example, recently when Senator Plett felt or perceived that Senator McPhedran had called him a bigot, he raised a point of privilege and the Speaker ruled in his favour. In that case, Senator Plett’s perception was validated, so that underlines a concept of perception. Senator McPhedran said it was not her intention to offend Senator Plett. So there was a ruling made on the balance between what was said, what was intended and what was perceived. That’s what freedom of speech is all about, and that’s also what harassment is all about. If Senator McPhedran had continued to speak along those lines, then she could have been found guilty of harassment, but she did not do that.

How does this relate to Bill C-16 and pronouns? I’ve already outlined that. If I or any other person were to call a trans woman by the pronoun “he,” that trans woman may well be offended. If that trans woman spoke to me and said to me, “Please, I would rather be called ‘she’ than ‘he’,” and I ignored that and continued to call that trans woman “he,” that would be discrimination. She could take this case to a human rights tribunal, and in all likelihood I would be found guilty of harassing her because I called her by the wrong pronoun and had done it willingly and as a way to discredit her, humiliate her or make her feel less than what she was really worth.

Continually calling someone by the wrong pronoun can be a way to put them down. It is a way to harass someone. It is somewhat akin to name-calling. It’s not exactly name-calling. As anyone from a different race knows, race baiting, calling you by all those names we don’t dare repeat in the chamber, is a way to put that person down. In my view, calling someone by the wrong sexual identity, the wrong gender identity, is the same thing because your race and your sex define who you are and we should respect that. We should respect the wishes of those who wish to be called by the correct pronoun and terminology.

I support the passage of Bill C-16 because it goes beyond what provincial human rights acts have done. Provincial human rights acts will prevent discrimination on the basis of employment or entry into public places, but this bill will actually amend the Criminal Code. That is really important because the Criminal Code applies to the whole country and will protect transgender individuals who we know, the statistics prove, are more likely to be physically assaulted.

By strengthening the Criminal Code to ensure that there are sufficient consequences for physically assaulting a transgender individual, we are actually enhancing their safety. The human rights acts will not do that. They prevent you from harassing the person, but the Criminal Code prevents you from physically harming them. The rate of physical harm is severe, so I’m in favour of this bill.


Please click here to read the full text of this debate