Does human rights legislation let government police people’s use of pronouns?
I have already written here about the way the federal government’ recently introduced Bill C-16 will restrict freedom of expression by adding “gender identity or expression” to the long and growing list of “identifiable grounds” of criminalized hate speech. In that post, I did not touch on the other clauses of the bill, which will similarly add “gender identity or expression” to the list of prohibited grounds of discrimination in the Canadian Human Rights Act. However, that too will interfere with freedom of expression ― and, Eugene Volokh makes clear in a recent Volokh Conspiracy post, in ways that are quite insiduous. indeed, given the narrow ― if still unjustifiable ― scope of the Criminal Code‘s hate speech provisions, this interference will quite possibly be the more significant one.
The issue prof. Volokh highlights is the application of anti-discrimination legislation to police the pronouns that people ― for example, employers or co-workers ― use to refer to transgender persons. He describes a dispute involving an Oregon teacher who insisted on being referred to as “they,” rather than “he” or “she.” Prof. Volokh had previously written about a document in which the New York City Commission on Human Rights opined that transgender persons are entitled to demand that others refer to them by their preferred pronouns, including those that are not in general usage among English-speakers (such as “ze” and “hir”).
Similar issues can arise in Canada, although a cursory CanLII search seems not to bring up decided cases where they were front and centre. Still, the use of pronouns seems to come up at least as a peripheral issue in some human rights disputes. (The government’s “use of binary gender designation on driver’s licenses and health cards” (T.A. v. Ontario (Transportation), 2016 HRTO 17, [1] (interim decision)) and in other contexts is also at issue in some disputes under provincial human rights legislation, but it doesn’t raise the same freedom of expression issues that arise in the private sphere, especially in the context of employment). Moreover, the Ontario Human Rights Commission has published a “Policy on preventing discrimination because of gender identity and gender expression” which states, among other things, that “[g]ender-based harassment can involve … [r]efusing to refer to a person by their … proper personal pronoun” (18). While the word “proper” is ambiguous insofar as it doesn’t make clear who decides on a pronoun’s propriety,” the policy also states that “[t]rans students have the right to be addressed by their chosen … pronoun” (46; emphasis mine), and makes other references to chosen, and not only “proper” pronouns. This suggests that the Commission would support claims to the effect that use of pronouns other than those preferred by the person to whom they refer are discriminatory.
Why is that a problem? Isn’t referring to people the way they ask to be referred to a matter of common courtesy? Common courtesy, perhaps, although I’m not convinced that common courtesy can require one to use invented words. But, be that as it may, the issue is not what courtesy requires, but whether it is right that the law should be used to enforce these requirements. As prof. Volokh explains, government intervention into the way people speak, especially in the context of private relationships (for example between employer and employee or among fellow-employees in a private firm) is “a major intrusion on … freedom generally, and free speech rights in particular.” He writes:
Compelling people to change the way they use the ordinary, commonplace words of everyday speech … is a serious imposition. Some transgender people claim that using their preferred pronouns is required as a matter of “respect.” But I don’t think it’s at all respectful to demand that others change their speaking this way, and indeed to coerce them into doing this. …
Nor is this just a matter of asking for equal treatment. People don’t generally get to choose their pronouns, come up with new pronouns for themselves, or change the grammatical features of normal words. While the custom is generally to use others’ names, there is no such custom as to pronouns. If a Quaker insisted that people call him “thee” instead of “you” (Quakers generally don’t insist on that, but if everyone gets to choose a pronoun, then why not?), I don’t think we would — or should — feel obligated to do so. Likewise for “they,” used for reasons of sexual identity as opposed to “thee” for religious identity.
Moreover, the insistence on the use of certain pronouns in preference to others is likely to be inherently normative, if not outright political. It is, prof. Volokh says, an attempt “to convey an idea about language and how language should be,” and those who go along with the demands “will likewise be seen as buying into that idea.” Some may think that this idea is innocuous; others may find it good. But, as prof. Volokh notes, “trying to force people to endorse a particular view on these questions by requiring them to use this highly conspicuous, nonstandard usage” is a violation of their freedom of expression. Prof. Volokh argues that it is also unconstitutional under U.S. law.
In Canada, things would not be so clear. On the one hand, the Supreme Court has held, notably in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, that anti-discrimination legislation can restrict the freedom of expression and be found “demonstrably justified in a free and democratic society” under section 1 of the Charter. On the other, Whatcott emphasized the narrowness of the prohibition on hate speech and the extreme character of the expression which it served to censor. Perhaps significantly, it also stressed “[s]ocietal harm flowing from hate speech” and insisted that “[t]he feelings of the … victim are not the test,” [82] though it is doubtful that this emphasis would survive in the context of a straightforward anti-discrimination case. A further source of difficulty in analyzing the issue is that the focus, in Canadian freedom of expression jurisprudence, on what Whatcott described as “the values underlying freedom of expression” [65] ― self-fulfillment, search for truth, and democratic participation ― isn’t particularly well-suited to resolving a dispute where grammar, rather than the content of expression, is at stake. (This is unsurprising since, as I noted here, these values weren’t intended to be invoked in cases where the law at issue sought to limit expression on the basis of its content; their use in all freedom of expression cases is the product of a doctrinal sleight of hand.)
Ultimately, the constitutionality of the government’s policing of pronoun use under the authority of human rights legislation would probably depend on whether courts think that the objective of ensuring equality for transgender people can be achieved without it ― subject to the courts’ tendency to approach this issue with a good deal of deference to the government ―, and perhaps also on the outcome of a balancing between the restriction on free expression that it would operate and its beneficial effects. I don’t think we can be certain of the outcome, but given the Supreme Court’s general readiness to countenance infringements of the freedom of expression, I suspect that it would be more likely than not to uphold pronoun use requirements imposed by human rights authorities. And that’s without even wading into the mess of the standard of review that courts would apply to these authorities’ decisions…
Yet that would be unfortunate. Whatever we think of the propriety of governmental interference with economic decisions, such as whom to hire or to contract with, in the name of equality, we should agree that similar interference with the very way we speak is a more serious matter. I have no sympathy for the view, often expressed in the context of litigation about same-sex marriage, that courts should not upset longstanding traditions. Courts can certainly do so when no one’s rights or liberties are adversely affected, as was the case with same-sex marriage. But here the situation is different. The issue isn’t that the state would be making itself into an engineer of social change ― it’s that it would be doing so at the expense of individuals whom it would be conscripting for this purpose, and moreover that the conscription concerns not the economic sphere, but speech itself. Again, it may be that the change in question would be beneficial one. But there are means to which the state should not be able to resort even in the pursuit of worthy ends.
Double Aspect 