By Nina Dragicevic

Passed in June 2017, Bill C-16 has become part of a larger conversation surrounding gender, pronoun use, freedom of speech, and the rights of transgender and gender-diverse Canadians. What changes, exactly, are in the new law?

Bill C-16 added the words “gender identity or expression” to three places.

First: It was added to the Canadian Human Rights Act, joining a list of identifiable groups that are protected from discrimination. These groups include age, race, sex, religion and disability, among others.

Second: It was added to a section of the Criminal Code that targets hate speech — defined as advocating genocide and the public incitement of hatred — where it joins other identifiable groups.

Third: It was added to a section of the Criminal Code dealing with sentencing for hate crimes. If there’s evidence that an offence is motivated by bias, prejudice or hate, it can be taken into account by the courts during sentencing.

The bill, which enshrines the rights of transgender or gender-diverse Canadians by including them under human rights and hate-crime laws, has sparked some debate. Critics voiced concerns that the law will penalize citizens who do not use specific pronouns when referring to gender diverse people.

Two legal experts offer their perspective: Brenda Cossman, law professor at the University of Toronto and director of the Mark S. Bonham Centre for Sexual Diversity Studies, and Jared Brown, commercial litigator at Brown Litigation, who often works with corporate clients on employment law and human rights disputes.

Pronoun usage

Does the bill legislate the use of certain language? And could someone go to jail for using the wrong pronoun?

In the Criminal Code, which does not reference pronouns, Cossman says misusing pronouns alone would not constitute a criminal act.

“The misuse of gender pronouns, without more, cannot rise to the level of a crime,” she says. “It cannot rise to the level of advocating genocide, inciting hatred, hate speech or hate crimes … (it) simply cannot meet the threshold.”

The Canadian Human Rights Act does not mention pronouns either. The act protects certain groups from discrimination.

“Would it cover the accidental misuse of a pronoun? I would say it’s very unlikely,” Cossman says. “Would it cover a situation where an individual repeatedly, consistently refuses to use a person’s chosen pronoun? It might.”

If someone refused to use a preferred pronoun — and it was determined to constitute discrimination or harassment — could that potentially result in jail time?

It is possible, Brown says, through a process that would start with a complaint and 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. A non-monetary remedy may include sensitivity training, issuing an apology, or even a publication ban, he says.

If the person refused to comply with the tribunal's order, this would result in a contempt proceeding being sent to the Divisional or Federal Court, Brown says. The court could then potentially send a person to jail “until they purge the contempt,” he says.

“It could happen,” Brown says. “Is it likely to happen? I don’t think so. But, my opinion on whether or not that's likely has a lot to do with the particular case that you're looking at.”

“The path to prison is not straightforward. It’s not easy. But, it’s there. It’s been used before in breach of tribunal orders.”

Where are pronouns mentioned?

Since the changes brought forth by Bill C-16 do not mention pronouns, both Cossman and Brown cite a 2014 policy released by the Ontario Human Rights Commission (OHRC) for guidance.

Page 18 reads: “Gender-based harassment can involve: (5) Refusing to refer to a person by their self-identified name and proper personal pronoun.”

The policy itself is not legally binding, Cossman says, but a human rights tribunal “does tend to follow the policy that’s articulated.”

The OHRC is a provincial body, however — whereas Bill C-16 is federal — but Brown says the Department of Justice has said the federal guidelines will mirror the OHRC policy.

Which pronouns are expected to be used?

According to the OHRC's website: “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 the person by their chosen name is always a respectful approach.” The OHRC states that refusing to do so may be considered discriminatory, a clarification that was released after the debate started. (See the full statement).

Where does this apply?

The Canadian Human Rights Act is a federal act — its scope includes the federal government itself, First Nations governments, as well as federally regulated employers, such as banks and telecommunications companies.

Cossman describes this jurisdiction as “very narrow.” She says provinces and territories already protect transgender and gender-diverse Canadians.

“(Bill C-16) really was just bringing the federal human rights code into accordance with what has already been protected provincially,” she says. “Most public services, most industries would have already been covered under the provincial legislation.”

Bill C-16’s legislative summary addresses this: “Most human rights complaints pertaining to the provision of services, accommodation, employment or the management of public spaces and facilities are made under provincial human rights laws.”

Section 1.1.4 of the summary — “Provincial and Territorial Approaches to Gender Identity and Gender Expression” — briefly summarizes applicable laws in each jurisdiction.