2017/05/17: Senate hearing on Bill C16

[Music]

Please good afternoon and welcome colleagues, invited guests, members of the general public who are following today’s proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Today, we continue our consideration of Bill C-16, an act to amend the Canadian Human Rights Act and the Criminal Code. With this, our last day of hearings on the bill, we will move to Clause by Clause consideration tomorrow.

With us today for the first hour are Jordan B. Peterson, Professor, Psychology Department of the University of Toronto, and from the D. Jared Brown Professional Corporation, D. Jared Brown, lead counsel. Thank you gentlemen for being here. You both have up to five minutes for opening statements and Mr. Peterson, I believe you’re going to lead off. Professor, the floor is yours.

So I think the first thing I’d like to bring up is that it’s not obvious when considering a matter of this sort what level of analysis is appropriate. If you’re reading any given document, you can look at the words or the phrases, or the sentences, or the complete document, or you can look at the broader context within which it is likely to be interpreted.

When I first encountered Bill C-16 and its surrounding policies, it seemed to me that the appropriate level of analysis was to look at the context of interpretation surrounding the bill, which is what I did when I went and scoured the Ontario Human Rights Commission web pages and examined its policies. I did that because at that point the Department of Justice had clearly indicated on their website, in a link that was later taken down, that Bill C-16 would be interpreted within the president’s policy, presidents already established by the Ontario Human Rights Commission.

So when I looked on the website, I thought, well, there’s broader issues at stake here, and I tried to outline some of those broader issues in the initial. You may or may not know, I made some videos criticizing Bill C-16 and a number of its policies that surround it. I think the most egregious elements of the policies are that it requires compelled speech. The Ontario Human Rights Commission explicitly states that refusing to refer to a person by their self-identified name and proper personal pronoun—which is the pronouns that I was objecting to—can be interpreted as harassment, and so that’s explicitly defined in the relevant policies.

So I think that’s appalling, first of all, because there hasn’t been a piece of legislation that requires Canadians to utter a particular form of address that has particular ideological implications before, and I think that it’s a line that we shouldn’t cross. Then I think that the definition of identity that’s enshrined in the surrounding policies is ill-defined and poorly thought through and also incorrect.

It’s incorrect in that identity is not and will never be something that people define subjectively, because your identity is something that you actually have to act out in the world as a set of procedural tools, which most people learn—I’m being technical about this—between the ages of 2 and 4. It’s a fundamental human reality; it’s well recognized by the relevant, say, developmental psychological authorities.

The idea that identity is something that you define purely subjectively is an idea without status as far as I’m concerned. I also think it’s unbelievably dangerous for us to move towards representing a social constructionist view of identity in our legal system. The social constructionist view insists that human identity is nothing but a consequence of socialization, which there’s an inordinate amount of scientific evidence suggesting that that happens to not be the case.

The reason that this is being instantiated into law is because the people who are promoting that sort of perspective—or at least in part because the people who are promoting that sort of perspective—know perfectly well that they’ve lost the battle completely on scientific grounds. It’s implicit in the policies of the Ontario Human Rights Commission that sexual identity, biological sex, gender identity, gender expression, and sexual proclivity all operate very independently, and that’s simply not the case.

It’s not the case scientifically; it’s not the case factually; and it’s certainly not something that should be increasingly taught to people in high schools, elementary schools, and junior high schools, which it is. It is being taught. I included this cartoon character that I find particularly reprehensible, aimed, obviously, at children somewhere around the age of seven, that contains within it the implicit claims, as a consequence of its graphic mode of expression, that these elements of identity are first canonical and second independent, and neither of those happen to be the case.

I think that the inclusion of gender expression in the bill is something extraordinarily peculiar, given that gender expression is not a group, and that according to the Ontario Human Rights Commission, it deals with things as mundane as behavior and outward appearance such as dress, hair, makeup, body language, and voice, which now, as far as I can tell, open people to charges of hate crime under Bill C-16 if they dare to criticize the manner of someone’s dress, which seems to me to be an entirely voluntary issue.

So I think that the Ontario Human Rights Commission’s attitude towards vicarious liability is designed specifically to be punitive in that it makes employers responsible for harassment or discrimination, including the failure to use preferred pronouns. They have vicarious liability for that, whether or not they know it’s happening, whether or not the harassment was intended or unintended.

And so I’ll stop with that. Thank you.

Mr. Brown: I'm a litigator in Toronto. I act in all manner of commercial and employment disputes. I'm not an academic; I live with my clients in the land of legal reality and how the law actually works. About two years ago, I began to see claims of discrimination included in every employment-related court claim. My phone now rings weekly with human rights tribunal matters. It has become a reality for employers across Canada.

In August of last year, I became aware of Dr. Jordan Peterson. He was discussing what he saw as a problematic law, poorly written. That’s when I observed the oddest thing happening: lawyers, academic lawyers, important people began to say that he had the legal stuff wrong, that nothing unusual about this bill, and they also said you don’t get to go to jail if you breach a human rights tribunal order. What was happening is they weren’t defending the law, but downplaying its effects.

Now as a practicing lawyer, anytime a lawyer, and particularly an academic, says, “Look away, there’s nothing to see here,” that gets my antenna way up. So I did some research, which can be found in the brief that I filed in advance of today. It sets out the path to prison on this. I knew as a commercial litigator that anyone can end up in jail if you breach a tribunal order; it is a simple civil contempt of court process. People go to jail for this.

But what about the freedom of expression issue? It’s a foundational issue. We all know that section 2B of the charter sets out that everybody has the fundamental freedoms of thought, belief, opinion, and expression.

We all know that the government has successfully restricted freedom of expression over the years, but what if, rather than restricting what you can’t say, the government actually mandated what you must say? In other words, instead of legislating that you cannot defame someone, for instance, the government says when you speak about a particular subject—let’s say gender—you must use this government-approved set of words and theories.

The American jurisprudence clearly defines this as unconstitutional compelled speech. In Canada, the Supreme Court has enunciated the principle that anything that forces someone to express opinions that are not their own is a penalty that is totalitarian, and as such, alien to the tradition of free nations like Canada.

Now how does C-16 get us to compelled speech? The Minister of Justice has summarized Bill C-16 as the enactment that amends the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination. The Department of Justice website used to say that we must look to the Ontario Human Rights Commission policies for definitions on these terms.

Ontario’s policies on gender identity and gender expression are set out in my brief. They state that gender-based harassment can involve refusing to refer to a person by their self-identified name and proper personal pronoun. Refusing to refer to a transperson by their chosen name and a personal pronoun that matches their gender identity will likely be discrimination.

The law is otherwise unsettled as to whether someone can insist on any one gender-neutral pronoun in particular if the harasser didn’t know or didn’t intend to harass; it’s still harassment. Now why is this important? Well, in Ontario, the Human Rights Commission is a policy development creature of the legislature. It creates the policies which interpret the code, but what is most important, the tribunal must follow these policies; it is bound by them.

So the commission creates the law on pronouns in Ontario. The policies on pronouns were introduced into the legal framework after the law had left the legislature. Federally, the same process will be followed; as the Department of Justice has said, a similar guideline will be developed as with the Ontario policies. Federal guidelines must be followed by the federal tribunal. The guidelines will mandate pronouns.

This will happen after the bill leaves the Senate. Mandating use of pronouns requires one to use words that are not their own, which imply a belief in or an agreement with a certain theory on gender. If you try to disavow that theory, you can be brought before the Human Rights Commission for misgendering, or potentially find yourself guilty of a hate crime.

To sum up on the subject, we’re going to have government-mandated speech. Now, in weighing on the constitutionality of the proposed Bill, the Department of Justice said on its website, “Look, there’s a variation of this bill that already exists in most of the provinces.” I don’t believe that’s a robust argument in favor of constitutionality.

I would refer you to the comments of the now Chief Justice McLachlin of the Supreme Court in the decision of Taylor; it’s in my brief. The chilling effect of leaving overbroad provisions on the books cannot be ignored, while the chilling effect of human rights legislation is likely to be less significant than that of criminal prohibition. The vagueness of the law means it may well deter more conduct than can legitimately be targeted.

As a lawyer on the ground, I worry about poorly drafted laws and their impact on my clients. As a Canadian, I worry about Parliament tacitly authorizing compelled speech. The brief I provided to the committee contains a comprehensive legal opinion that I published back in December on C-16. There’s a table that shows how the federal human rights regime mirrors the Ontario system in terms of enforcement of policies and guidelines.

I have to wrap up, sir, and finally it includes the case law that underpins the opinion. Thank you.

Okay, thank you both. We’ll begin the questions, beginning with the deputy chair, Senator Baker.

Thank you. Thank you, Mr. Chairman, and thank you to the witnesses for their presentation. As the witnesses know, the nine provinces in Canada have the provision in their laws, including Ontario, and also the words “expression,” as I recall, appears in four or five provinces.

So what you are arguing is against what we already have in law. Your reference to the criminality to the sections of the criminal code—at our last meeting, Senator Zel correctly pointed out that sections 318 and 319 start off by genocide. Under the heading “Genocide,” the next heading is “Public Incitement Likely to Lead to a Breach of the Peace,” and you know what a breach of the peace is. Mr. Brown, willful promotion of hate, these things are—and then there are defenses listed, as you know, in that criminal code provision. There are several defenses if you honestly believe in what you said. If you, you know, the defenses are extensive in the criminal code; they’ve worked well for Canada.

So what do you have to say about the facts of what’s presently in the criminal code and your reflection that somehow the genocide heading, the heading on public incitement, on willful promotion of hatred, somehow that these provisions should not be included under those headings?

I think I have to be clear: my presentation relates to the amendment of the Human Rights Code or the proposed amendment. And that is, in fact, how one like Dr. Peterson may in fact find themselves on the wrong side of jail. And so if you’ve reviewed the publication in the opinion, I say that simply by breaching the proposed amendment to the Human Rights Act, particularly with somebody who is deliberately doing so—for instance, somebody was saying, “I’m not going to use those words”—that person, if they are dragged before the tribunal, the Ontario tribunal or the federal tribunal. I’ve indicated to you already that the Department of Justice has said they’re going to pass the same guideline on pronouns.

So what I’m suggesting to you is that if somebody says, “I’m not going to use those words,” and is brought before the tribunal, the federal tribunal, and the tribunal then delivers an order for a payment of a fine and alternatively a non-monetary remedy, i.e. cease and desist order, an order to do something to compel them to do something, and that person who’s brought before the tribunal says, “I’m not doing that,” they will find themselves in contempt of court, and prison is the likely outcome of that process until they purge the contempt. That’s what I’m suggesting.

I’m not suggesting to you that the amendments to the criminal code—I’m not advocating genocide, I guess let’s just say that. And my presentation here is restricted to what I see as the pronoun policy issue and the compelled speech issue, so it covers the provincial legislation that you just strongly disagree with that we’ve had in place in the provinces for decades.

It is the policies that were enacted after it left the legislature and which will be enacted after this bill leaves this committee.

I would also like to add to that the fact that once I made the video stating that I wouldn’t use the “Z” and “Zur” pronouns, for example, which I regard as part of an ideological linguistic vanguard, the university lawyers, after carefully considering what I said, sent me two letters to cease and desist in my public utterances because they believed that not only was I violating the university’s standards of conduct, but that I was also violating the relevant provisions of the Ontario Human Rights Commission.

Therefore, as far as I could tell, vindicating the statement that I made when I made the video to begin with, which was that the act of making the video itself was probably already illegal, and they didn’t do that lightly under provincial law.

Yes.

Okay, Senator P.L.

Thank you, chair, and thank you to both of you for being here. I have two questions—one for Dr. Peterson, right at the get-go—and then one for the two of you. Hopefully the chair will indulge me.

Deliberations of this bill, and during deliberations of this bill, we keep hearing the term “respect” thrown around. Respect is indeed critical in debates of legislation as sensitive as this, and there are a lot of people here who need to be reminded that respect works both ways, including people at this committee. Senator Baker has already referred to comments as genocide. I don’t think anybody here is promoting genocide. However, Dr. Peterson, can you comment on the notion of respect where some of your critics say, “Why can you not just respect your students? Just use the gender-neutral pronouns.” How do you respond to that?

Well, first of all, I’d have to be convinced that doing so would do more good than harm, and I don’t believe that. I think I’m actually in a reasonable position to justify my claim. I think that the danger that’s intrinsic to the law far outweighs whatever potential benefit it might produce, especially given that there’s no hard evidence whatsoever for any benefit.

I would also like to point out that the people who are promoting this legislation claim to be acting on behalf of the transgendered community, but they weren’t elected nor appointed to act as such representatives and are doing it on their own say-so. I’ve received many letters—at least 30 now—from transgendered individuals indicating that they are not in accordance with the claims of these so-called representatives to be representing, or with the intent of the legislation, which has actually made them more visible rather than less visible, which is—and the less visible is what they had preferred.

With regards to respect, is that you don’t meet people, generally speaking, in a mutual display of respect; you generally meet people in a mutual display of alert neutrality, which is the appropriate way to begin an interaction with someone, because respect is something that you earn as a consequence of reciprocal interactions that are dependent on something like reputation, which is also a consequence of repeated interactions.

The notion that addressing someone by their self-defined self-identity is necessarily an indication of basic human respect for them, I think, is an entirely spurious argument, especially given that there’s no evidence that moving the language in a compelled manner in this direction is going to have any beneficial effect.

We’re supposed to assume that just because hypothetically the intent is positive, the outcome will be positive, and any social scientist worth his or her salt knows perfectly well that that’s rarely the case.

So Dr. Brown, you talked about non-monetary orders that could include sanctions like orders to undertake sensitivity and anti-bias training. I would like either one or both of you to comment on whether you could explain why an individual may have a strong objection to undertaking such training. And Mr. Brown, could you let the committee know how serious the sanction could be, and of course you already did on that, if you refuse to undertake such an order, and specifically at the federal level, but what would—why would people have an objection to taking such training?

I think I’m going to let Dr. Peterson answer why he or someone like him might have an objection to undertaking that type of training, and then I’ll deal, obviously, once again with the severity of that decision if it gets before the tribunal.

Well, I have a profound objection to undergoing such training; in fact, I would flatly refuse under all conditions to undergo it. The reason, there are multiple reasons for that. The first reason is that the science surrounding the so-called charge of implicit bias that’s associated with perception is by no means settled to such a degree that, to one of the three people who designed the most commonly used measure, which is the Implicit Association Test, has detached himself from the other two researchers on the grounds that the use of the test has become, has far transcended its scientific validity and reliability. It’s nowhere near valid or reliable enough to be used in the manner that it’s being used, and even the more pro-IAT researchers who developed the test have admitted to that publicly, even though they haven’t stressed it nearly to the degree they should have.

So first of all, the science is not settled and is being used absolutely inappropriately. I can say that as a clinician because I know the—and as a psychometrician, I know the criteria for using a test for essentially diagnostic purposes, and the IAT doesn’t even come close to what’s necessary.

Then the next issue is, well, where’s the evidence that anti-unconscious bias training works? There’s no evidence, and what little evidence is suggests that it actually has the opposite effect because people don’t like being brought in front of a re-education committee and having their fundamental perceptions—see, their perceptions, not even their thoughts, but their perceptions themselves—altered by collective fiat.

It’s an unbelievable…

[Sir we have a very engaged committee. Concise questions and concise responses would be helpful.]

Senator Pratt: Thank you for being here. I want to quote briefly from a document from the Ontario Human Rights Commission that says, “Some people may not know how to determine what pronoun to use. Others may feel uncomfortable using gender-neutral pronouns. Generally, when in doubt, ask a person how they wish to be addressed. Use they if you don’t know which pronoun is preferred. Simply referring to their person by their chosen name is always a respectful approach.”

So you can use a pronoun; you can choose; you can use their chosen name. So if someone chooses to change his name from Paul to Peter, surely you would use Peter because it’s a matter of simple politeness and respect. If the same person chooses to change her name from Paul to Paula, won’t you use the name Paula simply as a matter of respect?

What’s the difference here?

Well, I guess the issue—I speak of the legal issue there—is that you’re now introducing the full force of the law behind the requirement to use—and I’m dealing obviously with respect to the pronoun issue in terms of not addressing somebody by their legally registered name, for instance.

I don’t think that’s where we’re running into trouble here. I think the issue becomes that if you don’t address somebody by the pronoun that they self-identify by, as I’ve read out to you, the fact that the full force of the law will be behind that person, that’s what I’m finding is troubling in the legislation.

But the Ontario Human Rights Commission gives people the alternative not to use pronouns and use the person’s chosen name, which is always a respectful approach.

So pronouns are not necessary or not mandatory; you can always choose the person’s chosen name as a respectful approach, and therefore I argue I’m not aware that there is a piece of legislation that compels you to use my proper name, in other words.

Once again, it’s the fact that the full force of the law will be behind that when we’re dealing with the group being identified in the legislation. So for instance, if I were not to call you by your chosen name, I’m not sure you’d enjoy the full force of the law behind you as a result of that, and that’s what I’m suggesting to you is the difference here.

I’m just arguing, sir, that you always base whatever you say on what the Ontario Human Rights Commission is saying, and I’m quoting from the Ontario Human Rights Commission document. They’re saying we’re not mandating pronouns; you can always use the person’s chosen name as a respectful approach.

I respectfully disagree.

But then, well, I would say then that’s actually an indication of just exactly how poorly the policy documents are written, because I can quote this one, which is also from the Ontario Human Rights Commission website, that says, and I quote, “Refusing to refer to a person by their self-identified name and proper personal pronoun constitutes gender-based harassment.”

If there—the policies were written in a coherent manner and there weren’t internal contradictions, then your statement would be a reasonable objection. But since it’s not written that way, I do believe firmly that that’s a testament to the degree to which it’s a poorly written set of policies, is that it’s full of internal contradictions, and that’ll be worked out very painfully within the confines of people’s private lives.

Thank you, sir.

Thank you, Senator Batters.

Thanks very much, both of you for being here. First of all, Dr. Peterson, I want to go back to this issue of personal pronouns and if you could please tell our committee more about this issue. It’s something that I was not at all familiar with prior to this bill being introduced and in particular about the gender-neutral pronouns and your experience in pushing back against being forced to use those gender-neutral pronouns.

Well, I don’t think the people who initiated this legislation ever expected that there would be an absolute explosion of identities, first of all, and also of so-called personal pronouns as there has been. I think Facebook now recognizes something like 71 separate gender identity categories, each of which in principle is associated with its own set of pronouns, and so it’s become, well, linguistically unmanageable.

And it’s also the case that words can’t be introduced into the language by fiat. I can’t even think of a time when that’s actually worked. We’re not exactly sure how words enter the common parlance, but it’s certainly not that way, and so the legislation devolves into a kind of absurdity, as far as I can tell.

I mean, one of the people that I discussed this with claimed that the way that you kept track of someone’s personal pronouns was to use your cell phone as an adjunct to your communication; and I mean, you wouldn’t say anything like that if you knew anything about common human nature, let’s say, and the manner in which people communicate with one another.

Okay, so the types of pronouns you’re talking about, just so everyone’s clear, because I don’t think these are common parlance, “Z” and “Zur,” and what other sorts of gender-neutral pronouns are we discussing here?

Well, I have a very bad memory for that sort of thing, but if you’re interested in it, you can find lists of them very rapidly on the web, and they’ve been produced by—I think they’ve been produced by people whose essential desire is to gain linguistic control. That’s as simple as I can put it; it is to gain linguistic control.

But they’re not used popularly, and that seems to me to be a real problem; as a consequence, that you make failure to make their use something that could carry a criminal penalty. I just don’t understand that, and I don’t understand how the government can justify imposing a criminal penalty on the use of words that no one either knows or uses. It just seems preposterous to me, but there it is.

Could you please also tell us a little bit more about your personal experience in pushing back against this? Many are familiar with your story, but not everyone, so I just wanted to give you a little.

Well, I made a video—actually, I made three videos, but we’ll just talk about one of them. I made one criticizing Bill C-16 for the reasons that I already described because I went and read the policies and they made my hair stand on end, the surrounding policies, and so I made a video stating essentially that and detailed out my reasons.

You know, I’ve been following the, let’s say, ideologies on campus for a very long period of time, and I suppose I have some expertise in that. There’s an ideological war that’s ripping the campuses apart, and it’s essentially between an ideological variant that’s rooted in what’s come to be known as postmodernism with a kind of a neo-Marxist base and modernism.

I would say that that’s accounting for all the turmoil on the campuses, and I see this as an extension of this campus turmoil into the broader world, and I really believe that is the proper level of analysis. I truly believe that, and so I said that I believe that this is a vanguard issue in a kind of ideological war and that I’m not going to participate on the side of the people whose ideological stance I find reprehensible, unforgivable, and reprehensible, especially the Marxist element of it.

And so I announced that I wasn’t going to use these words because I don’t believe that they’re instantiated to protect anyone’s rights. I believe that they—the ideologues who are pushing this movement are using unsuspecting and sometimes complicit members of the so-called transgender community to push their ideological vanguard forward, and I firmly believe that.

So I’m not participating in that, and the fact that it’s potentially illegal for me not to participate in that is something that I regard as absolutely dreadful. It makes it, it puts a shudder in my heart as a Canadian that we could even possibly be in a situation like that.

You know, if the identity claims that are instantiated in this legislation and the policies surrounding this legislation are applied, it’s going to be hell for the psychiatrists—excuse my language—it's going to be very difficult for the biologists and the psychiatrists next, and I think we’ll see that happening very soon.

Thank you.

Senator Gold: Thank you, and thank you for being here. I’ve never been a practicing lawyer; I was a constitutional law professor, and I’m a free speech guy, so I appreciate the importance of the issues that are being raised. I think, respectfully, they were answered. Free speech issues were answered quite compellingly by my former colleague Brenda Cosman in testimony before this committee.

But I wanted to make three points. Mr. Peterson, and there are questions sort of buried in these points. I think I heard you say that you thought that the harm to this legislation outweighs the good. But there is— the trans community suffers harm regularly when they’re discriminated against, and whatever else one might say and worry about human rights tribunals and the like, this bill addresses and would take a major step forward towards reducing harm that a particularly vulnerable community experiences.

Second, let’s see if we could zero in on where we might agree that there is nothing in the law that criminalizes or creates an offense to criticize the notion that identity is a social construct, which you do. To criticize the way in which words come into the language, though modern Hebrew is an example of words coming in by fiat and the academy, France does it as well, of course, Shakespeare gave us so much of our language.

But there’s nothing in this bill that stands in the way of you taking a principled position against all aspects of this, including your criticisms of the activists. The issue is the pronoun, and unless I’m reading it wrong, as Senator Pratt pointed out, the Ontario Human Rights Commission policy does not say that refusing to use a person’s self-identified name or personal pronoun constitutes gender harassment. I may be wrong, but I believe it said it could, and I think that’s a real difference.

If I turn to you and say, look, please call me “they,” because that’s how I see myself now, because it’s hurtful for you to call me sir or miss, whatever it would be, but you refuse. I say, well, okay, if you’re uncomfortable with that because you’re not comfortable with that, call me Mark, and you refuse.

Were you to continue to call me by the name that I’m telling you is hurtful to me, is that not in fact something that is—that’s not something that the law can properly address? This is, you are knowingly hurting me, and in that respect, our courts ultimately, I think, are capable of striking a proper balance between people who slip up or who, for whatever reasons, just can’t get the words out of their mouth and those that persist in intentionally causing harm.

Would you agree with my characterization of the free speech as it applies to these issues?

Let me jump in just on the legal point. After Dr. Peterson posted his videos and after he rose to the public consciousness, the Ontario Human Rights Commission deemed it fit to release a new policy document called “Questions and Answers about Gender Identity and Pronouns.” And in so doing they said that refusing to refer to a transperson by their chosen name and a personal pronoun that matches their gender identity or purposely misgendering will likely be discrimination.

So I think it’s a little bit more certain than what you may have indicated in your comment, but I’ll allow Dr. Peterson to go ahead with the other element of your question.

Very briefly, sir.

Well, I would say that the very idea that calling someone a term that they didn’t choose causes them such irreparable harm that legal remedy should be sought, rather than regarding it as a form of impoliteness that legal remedies should be sought, including potential violation of the hate speech codes, is an indication of just how deeply the culture of victimization has sunk into our society.

Okay, leave it there.

Senator from… same topic. Mr. Brown, when the Minister of Justice was before this committee, she said the following: “There is nothing within Bill C-16 that would compel somebody to have to call somebody by the pronoun he or she or otherwise.” Can you comment on her position?

I’d agree with that; there is nothing in the bill. But the problem is that in the Government of Canada Department of Justice website—in their questions and answers section of that website, which was pulled down in December—it makes very clear that the definitions of the terms “gender identity” and “gender expression” have already been given by the Ontario Human Rights Commission.

The commission has provided helpful discussion and examples that can offer good practical guidance. The Canadian Human Rights Commission will provide similar guidance on the meaning of these terms in the Canadian Human Rights Act. Now, I take that to be a statement of legislative intent, and I’ll agree with you that the bill itself on its face does not seem to imply any manner of compelled speech, but when we’re tying it so deliberately and with this expectation, that’s where I think you get into some trouble.

And may I ask one more—again, Mr. Brown, you spoke about the chilling effects of overly broad legislation. I’m wondering if you consider the terms “gender identity” and “gender expression” to be equally broad, or do you consider one broader than the other?

I think they are overly broad definitions, and the only thing I can offer as a lawyer and a litigator is that the courts don’t like overbroad terms. I would refer you to the decision of London v. Bison of the Alberta Court of Appeal, where in that case the Court of Appeal says the objective of statutory interpretation is to discern the legislative intent from the language of the legislation, if possible, and to give effect to such intent.

This objective becomes difficult to attain where there is conflict, imprecision, or a lack of clarity in the legislation. Of particular concern in the area of human rights law is that a lack of clarity will cast a chill on the exercise of the fundamental freedoms, such as freedom of expression and religion. So, while I personally believe that the terms are not properly or not clearly defined and somewhat ambiguous, the courts don’t like that type of legislation either.

Just to add two things: with regards to the chill, it’s already the case, and I’ve seen this among my own students when they’re teaching personality, which is what I teach, which also involves assessment of gender differences between men and women, that the city now is for the advanced PhD students to avoid any such discussions in their classrooms, because the potential cost of transgressing against an unknown norm, let’s say, is so high that it’s just easier to teach other things.

And so I’ve seen that clearly and with multiple people. I would also say that it’s no trivial matter that the Department of Justice’s link to the Ontario Human Rights Commission and their statements about how this legislation was going to be interpreted mysteriously disappeared in the middle of December. Of all the things that have happened to me in relationship to this and that I’ve been studying, I think that was the most chilling…it was the, what would you say, it was the smoking pistol, right?

Because the issue is what’s the right level of analysis? Are you just supposed to look at the legislation? Well, since the Justice Department said no, you’re supposed to look at the surrounding policies. Well, that’s what I did, and that’s what I based my case on. And then all of a sudden, the link to those— the link tying those two things together just vanished, and people had to go into the Internet Archives to fish it back out so that it could remain part of the public record. I think that’s absolutely scandalous.

Thank you.

Senator Amadar: Thank you, chair, and thank you both of you for being here. I was trying to take notes, but I think I got this right, Mr. Peterson, that you talked about this bill as being an expression of vanguard ideology, am I right in thinking—in?

Well, I was thinking more about the policies that surrounded it, but yes.

So I’m trying to square what you as a party of one are saying with published documents from the Canadian Psychological Association, the American Psychological Association, the Canadian Medical Association, the American Psychiatric Association, the Canadian Psychiatric Association, and the United Nations human rights experts. So these are all, you know, these are not parties of one. They are associated. They are all—I imagine lots of psychologists are members of the Canadian Psychological Association and the Canadian Psychiatric Association.

So how are we to square what you’re saying, which is your opinion, which you are absolutely entitled to, with what everyone is saying, plus the feelings and testimonies of the people who have suffered over 30 years who’ve been taking issues to? People who we’ve listened to. So how are we to describe this?

Okay, well, with regards to your second point, if the people that you’re listening to aren’t randomly selected from a population, then their opinions are worthless from the perspective of testimony because you don’t know if you’re dealing with a biased sample, and that’s a big problem with the public consultation process that underlied this bill.

You cannot appreciate that if you’d like, but it’s standard practice in any polling institution or any body that’s attempting to extract a genuine opinion out of a so-called community of people, and if that isn’t followed then you can’t tell if the information that you’re receiving is biased.

With regards to your first point, what exactly are all those people who aren’t thinking the same way as me saying? You said that there are a bunch of them and a bunch of groups, but you never said what they’re saying precisely.

Well, I think our chair would rule me out of order if I—

You’re fine to read out what they’re all saying, but in general, they say they oppose discrimination and harassment because of gender identity and gender expression, and then there’s three pages which I can share with you.

I oppose discrimination against gender identity and gender expression; that’s not the point. The point is the specifics of the legislation that surrounds it and the insistence that people will have to be have to use compelled speech; that’s what I’m objecting to.

I’ve dealt with all sorts of people in my life—very people who don’t fit in in all sorts of different ways. I’m not a discriminatory person; there’s five hours of my teaching to my classrooms on tape on YouTube, and nobody’s found a smoking pistol. I’m not a discriminatory individual, but I think this legislation is reprehensible, and I do not believe for a moment that it will do what it intends to do.

I also don’t think that my opinion deviates substantially from the bodies that you’re describing because you haven’t provided any evidence that they say anything other than discrimination is a bad thing, and I think that unreasonable discrimination is a bad thing and it’s unreasonable when people are judged for any reason other than the specific competence that they bring to say a given position.

It’s not in anyone’s best interest that that occurs, but I don’t think that you’ve demonstrated in the least that the opinions that I’m putting forward exist in opposition to the standard practices of, say, my particular discipline.

Senator Gold: Could you repeat one more time your response to Senator Gold and Pratt that the Ontario Human Rights Commission has provided what I would say reasonable alternatives to your objection to using pronouns?

Well, I think it’s been made clear in the presentation so far is that it depends on which part of the Ontario Human Rights Commission’s policies you read, and that’s a big problem. I mean, that’s one of the reasons I criticized this to begin with, was because when I went through the policies, I could see that they’re absolutely incoherent.

So for example, here, let me give you another example. So there’s an insistence in the Ontario Human Rights Commission that sexual preference is an immutable phenomenon, which indicates at least in principle that it’s biologically grounded. But on the same, by the same token, in exactly the same policies, they presume that sexual identity, gender identity, and gender expression are entirely independent.

It’s like, sorry guys, you can’t have both of those because one’s A and one’s not A, and you can’t put those together. And there’s endless numbers of places in the policy surrounding Bill C-16 that are characterized by that kind of logical incoherency.

And I mean, what’s it going to do to people who are transgender, who are making the claim that they were, say, born that way at birth, which is a strong claim? That’s a biological claim. It indicates that there’s a direct causal connection between some biological phenomena and the expression of a particular identity. It’s actually the strongest defense that people who have, let’s call them non-standard sexual identities or gender identities have to defend their claims.

I have to wrap it up there and move on to Senator…

Thank you very much Mr. Chair.

I’ll leave the time for our guests to put in their translation devices. Thank you very much for being here. My question is for Mr. Peterson. Do you have the interpretation now, sir?

So I’m still trying to orient myself a little bit in this Bill. I’m a little bit lost in the arguments in favor and against, but some arguments really struck me because some people said that without this Bill there might be suicides; people would become depressed, transgender people of course.

And it seems to me that this is almost an extreme position, that without this Bill there would be an explosion of suicides and depression. So I’d like to ask you a question: as a professor now, you work in the social sciences; you study human behavior. Are there studies or statistics about the consequences that this Bill would have on those people? Is this Bill—would this Bill save as many lives and help as many people as it says?

Well, in principle, we would have that information if the policies that have already been introduced by the provincial governments were assessed properly. But as far as I know, there’s been no studies indicating that the introduction of this legislation specifically has done anything to modify the unfortunate rates of suicide, depression, anxiety, and so forth that are that are characteristic, well, you could say, often of marginalized groups, but that’s a bit of an overstatement.

So no, I don’t— that was part of my original claim is that there’s no evidence that this sort of legal redress, let’s say, is going to produce any of the positive consequences that are intended, and I do believe that by making the issue, let’s say, painfully visible—that’s one way of thinking about it—it’s actually had the opposite effect, and it’s, you know, it’s very, very common and this is something that’s well known in the relevant social sciences that just because you intend something to happen when you make a large-scale transformation doesn’t indicate in any manner that that’s going to be the outcome.

I mean, it would be lovely if things were that simple, and I mean the best social scientists always insist that you build an outcome analysis into any, into any broad-scale, what would you call it, social intervention, because there’s a good chance it’ll backfire. There’s a high chance it’ll backfire.

So it’s all presupposition, and it’s based at least in part on the notion that the transgender community is a community and that there are voices that speak for them homogeneously, and that this is what they all want and that it will work as intended.

And to me, looking at this from the social science perspective, there’s nothing about it that’s credible.

Missi, and I also don’t buy the intent.

Okay,

Senator D’Amour: Thank you, Mr. Chair. First of all, I’d like to ask a question to Mr. Peterson, and perhaps I would also have a question for Mr. Brown. My question is as follows: Dr. Peterson, I’m trying to understand your position. Do you see a difference between the opinions that you express that you are expressing today on this issue as part of this public consultation and the actions that you take as a university professor where you are in a position of authority and power over your students?

Well, first of all, I don’t necessarily consider myself in the position of authority and power. I consider myself in a position of responsibility, and those aren’t the same things. So I don’t agree with the way that the question is formulated, and I don’t understand what that has to do with my stance.

I mean, if I believe that the legislation is going to do more harm than good, and I also firmly believe—which I do—that it is more an issue of an ideological move than something that’s designed to address the concerns that it purports to address, I would also like to point out briefly that, you know, what should have happened when I made that video—and this is relevant to the question—was that like, maybe people paid attention to it for ten minutes and maybe it got a newspaper article and then it disappeared.

But I put my finger on something that’s what I thought. And the fact that this issue hasn’t gone away in nine months, quite the contrary, it’s exploded—not only in Canada but in all sorts of parts of the world—means that I have some evidence that my choice of level of analysis was correct and that there’s far more going on here, so to speak, than the mere surface issue that we’re purporting to discuss.

And so I take exception to the notion that I’m somehow abandoning my personal responsibility to my students, which is something that I believe is in fact driving what I’m doing. I believe that my obligation to my students constantly is to tell them what I think and to make that as informed and careful an opinion as I can possibly master, and that’s what I do.

I think that you understand that if you come to participate or to appear before a senate committee studying a bill, regardless of what we think of the question, my question for you is do you make a difference between your opinion, what you say, and the fact that the university, which pays you—I believe unless I’m wrong, the university considers you to be under its legal responsibility and so you are in a situation of authority over your students and this means that you can give an A or an F to your students?

Well, that’s Robin. I’m going to move on.

Senator McDonald: Thank you, chair. Dr. Peterson, I have a question for you.

The thing that concerns me most in this legislation is compelled speech. I think that’s very concerning. This committee has heard from Megan Murphy, who told us her opposition to this concept of gender fluidity because she believes gender is a social construction.

And Dr. Gad Saad also opposed this legislation because of his belief in evolutionary biology. What this shows is that with Bill C-16, we are prematurely shutting down a discussion on gender and sex as far from settled or appears to be far from settled.

I wonder if you can comment on that.

That’s exactly what we’re doing. I think that that might even be more dangerous than, in my opinion, than the compelled speech issue, because the social constructionist view of gender isn’t another opinion; it’s just wrong.

So, because—and I can tell you why that is fairly; I’ll take one minute to do that. Well, the proposition that’s instantiated, for example, in this particular visual, which is a good representation of the philosophy of the policies, is that there’s no causal relationship between these four dimensions of identity, and that’s palpably absurd.

I mean, 98% of people—it’s 99.7% of people who inhabit a body with a given biological sex identify with that biological sex. They’re incredibly tightly linked. If you can’t attribute causality to a link that’s that tight, you have to dispense with the notion of causality altogether. And then, of the people who identify, say, as male or female, who are also biologically male or female, the vast majority of them have the sexual preference that would go along with that, and the gender identity and the gender expression.

These levels of analysis are unbelievably tightly linked, and the evidence that biological factors play a role in determining gender identity is, in a word, overwhelming. There isn’t a serious scientist alive who would dispute that. Now you get disputes about it, but they always stem from essentially the humanities, and as far as I’m concerned, I’ve looked at it very carefully; those arguments are entirely ideologically driven.

It’s a tenet of the ideology that identity is socially constructed, and that’s partly why it’s been instantiated into law, because there’s no way they’re going to win the argument; but they can certainly win, let’s say, the propaganda war, especially by foisting this sort of reprehensible advertising information on children, and that’s part of the express intent.

I would add that the trans complainers have been covered under the existing grounds of sex before the tribunals across Canada, and as the Minister of Justice said, they are bringing this legislation in as a symbolic gesture. And so I leave it to you to question what that gesture may be, but this community has been protected under the existing grounds that are found in most of the human rights codes across Canada on the ground of sex.

Thank you, chair.

Thank you, Senator Joel. Thank you, Mr. Chair. Mr. Brown, Mr. Peterson, the Supreme Court Justice Wagner from the Supreme Court in a seminar at Ottawa University in early March of this year, which is a couple of months ago, stated the following: “When the court eventually faces a question touching on transgender identity, these two propositions will provide essential frames of reference. First one, that identity is not fixed but changing.” That’s the first proposal.

And then the second one, “that identity is not innate but contextual.” I repeat that; identity is not innate but contextual. End of quote.

I read that, and I try to understand the implication of this, you know, those two binary kinds of elements that—and he says the court. So I bet that he might have spoken to colleagues or, you know, the profession. Would you have a quarrel with that kind of approach to the definition of transgender reality? Or do you think that it’s a proper way of approaching legally the issues?

Because as you forcefully explained, somebody one day might challenge, you know, the proposal, the policies, and all what could stem from the enactment of those legislations. So in other words, we’ll find ourselves in the court one day and we will have to, you know, to analyze and argue the case, at least taking into account that reference that Justice Wagner mentioned not long ago.

So how would you react to that?

Well, I want to make sure I understand your question properly. So when the Justice said this, was he implying that the identity is not fixed but it is changing, and that identity wasn’t innate and it was contextual? Or was he outlining the arena within which this debate might take place?

No, it was essentially—it was, you know, it was not a speech on this; essentially it was more of, if I can use an expression that Mr. Brown will understand, it was rather a… you know, in a conference. The conference was about identity, but of course since, you know, identity is a topic of common and, you know, common in Canada, he felt that it was helpful if he would, you know, I should say, put his grain of salt in the public debate by establishing what he thinks is, you know, how to define transgender identity and establish some parameters.

Okay, so let’s assume that it is changing and contextual.

Then why is conversion therapy a problem? See, this is what... See, the thing is, when I started opposing this bill, people immediately assumed that I was transphobic and racist and all these other epithets that they’re perfectly willing to trot forth at a moment’s notice.

But you know, there’s been a tremendous attempt to make conversion therapy for people who are gay illegal, right? And the proposition is predicated on the idea that the identity—the sexual preference identity—is not changing nor contextual; it’s fundamental. And really what that means is that it’s grounded in something like biology.

It’s okay, fine, let’s scrap that. Okay, now it’s going to be changing, contextual. Okay, then why can’t it be changed with context? And so this is part of the problem with the policies, is they’re so incoherent that they’re going to work against the people that they’re designed to protect.

Now, people have a hard time believing I care about that, but you know, the fact that I’ve been called things doesn’t mean that that’s what I am.

So, you know, a lot of people who have, let’s call it a non-standard identity, the tightest argument they have for public acceptance of that identity is that it’s powerfully constrained by biological processes that are beyond their voluntary control.

So instantiate this view of humanity—the social constructionist view of humanity—and you can wave those claims goodbye because they’re completely, they’re at complete odds with the social constructionist viewpoint, and I think that’s a big mistake.

And I really do believe that that will backfire hard against the people who this legislation is designed to protect if it’s mutable, changeable, only subjective, and transformable on a whim, then why should anyone have any respect for it?

Gentlemen, I'm going to have to intervene. The hour has flown by, and we all very much appreciate your appearance here today and your testimony as well. Thank you. We’ll suspend briefly before hearing from our next witnesses.

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