Canada’s Bill C-16, Gender and Post-Truth Politics
Tyler Stacy
With the advent of Canada’s Bill C-16, controversy surrounding the extension of equal rights to trans people rose to public prominence alongside the swarm of media attention garnered by the Alt-Right. While amassing a modest following on YouTube with videos discussing the backwardness of ‘political correctness’ and the evil of Marxism, Jordan Peterson, a professor at the University of Toronto, declared the bill to be an insidious piece of legislature designed to damage ‘Western’ culture. As mass media outlets gave Peterson a platform, Peterson’s claims about the bill shifted the frame of conservative talking points regarding trans rights: no longer was the debate centred around a hypothetical sexual assaulter in women’s bathrooms, but instead discussion focused on Peterson’s outlandish claim that the bill would have the effect of penalising anyone who misgendered an individual through incorrect usage of pronouns. Despite droves of legal scholars and individuals with legal backgrounds explaining that Peterson’s claims lacked any basis in reality, media continued to give Peterson a platform and conservative politicians, recognising Peterson’s traction, towed the line.
This chapter seeks to uncover the post-truth politics surrounding trans rights by focusing specifically on the events and discussions surrounding Bill C-16. I will provide background on Jordan Peterson and his relation to Bill C-16, and then take a closer look at the reality of Bill C-16. I will then review the history of gender in Anglo-Saxon law. Although Peterson may not intentionally align himself with the Alt-Right, his politics place him adjacent and often times parallel to Alt-Right lines of thought. In reviewing the imagined reality of Bill C-16, and the grip it exercised on the wider public, especially in light of the storied history of gender in Anglo-Saxon law, it is clear that opposition to the extension of trans rights exists as justified only in these imagined realities; in reality, trans rights are gravely important to trans individuals and do not pose any physical danger to others or abstract danger to conceptions of free speech and liberty—that in fact, and quite obviously, the extension of trans rights is necessary to protect those individuals who are themselves at risk of both such physical and abstract dangers.
Jordan Peterson is a professor of clinical psychology at the University of Toronto who grew immensely in popularity following his objections to Bill C-16. Taking to the streaming video platform, YouTube, Peterson released ‘Professor against Political Correctness, Part I’ in 2016, where he criticises political correctness and Bill C-16.1 He states that the bill would result in pronoun misuse constituting a hate crime, and that the video itself, because of his ‘commentary on these definitions’, would be possibly ‘illegal and potentially classifiable as hate speech’.2 He calls the bill ‘nonsensical’, stating that ‘the formulation is absurd’ and ‘has no scientific standing’, and that it ‘is ideologically motivated’.3 He argues that the ‘gender neutral pronouns are politically motivated’ and ‘connected to an entire underground apparatus of political motivations: radical left political motivations’, and that to abide by this law is to be ‘the mouthpiece of some murderous ideology’.4 A month later, he doubled-down in an interview, stating: ‘These laws are the first laws that I’ve seen that require people under the threat of legal punishment to employ certain words, to speak a certain way, instead of merely limiting what they’re allowed to say’.5 Peterson also continued his alarmism in an article for The Hill:
Bill C-16, and its legislative sisters, are particularly insidious constructions …. There is … a crucial difference between laws that stop people from saying arguably dangerous words and laws that mandate the use of politically-approved words and phrases. We have never had laws of the latter sort before, not in our countries. This is no time to start.6
With Peterson’s sky-rocketing popularity—his message denouncing political correctness meshing seamlessly with the ideologies of an emerging Alt-Right—a debate held at the University of Toronto provided him yet another platform, and subsequent media coverage further validated his position. Thus, despite the fact that Peterson’s fears of Bill C-16 were without any legal basis, his popularity and validation of authority by media outlets shifted the discourse surrounding the bill—supporters of Bill C-16 now had to engage with an argument without merit.
Peterson cites ‘postmodern neo-Marxists’, often simply calling them ‘postmodernists’, as producers of C-16 and as a scourge on Western civilisation. According to Peterson, postmodern neo-Marxists are postmodernists who have aligned themselves with Marxism; they are evil not only because believing in Marxism is incompatible with being moral, but also because Marxism is affirmatively evil and deceptive, as revealed by twentieth-century history.7 He believes the social sciences and the humanities are corrupted by postmodern neo-Marxists who reject the ‘western Judeo-Christian tradition’ and want to destroy Western civilisation.8 In an interview with The Epoch Times, Peterson goes on to argue that Marxism is a doctrine worse than national-socialism, because the magnitude of havoc it spurred exceeded that wreaked by Hitler.9 Peterson states that, currently, the postmodern neo-Marxists ‘have control over governmental institutions; they have infiltrated bureaucratic organizations at the mid to upper level and are trained by their professors at the universities’.10 From this perspective, Peterson’s concerns and urgency seem, at least, well-intentioned.
Peterson’s insistence on the existence of postmodern neo-Marxism is hardly novel, however, and his idea is littered with historical inaccuracies, inconsistencies and fundamental misunderstandings of philosophy. As Tabatha Southey points out, Peterson’s concept should seem familiar, particularly because it is an idea nearly indistinguishable from ‘Cultural Marxism:’
Cultural Marxism’ is a conspiracy theory holding that an international cabal of Marxist academics, realizing that traditional Marxism is unlikely to triumph any time soon, is out to destroy Western civilization by undermining its cultural values. ‘Postmodern neo-Marxism’, on the other hand, is a conspiracy theory holding that an international cabal of Marxist academics, realizing that traditional Marxism is unlikely to triumph any time soon, is out to destroy Western civilization by undermining its cultural values with ‘cultural’ taken out of the name so it doesn’t sound quite so similar to the literal Nazi conspiracy theory of ‘cultural Bolshevism.11
With Marxism as an example of modernist philosophy, and thus subject to the postmodern ‘incredulity towards metanarratives’ that Jean-François Lyotard describes, postmodern neo-Marxism appears oxymoronic.12 In 12 Rules for Life, Peterson cites neither Derrida nor Foucault, instead only ever citing Explaining Postmodernism: Skepticism and Socialism from Rousseau to Foucault in reference to postmodernism.13 In contrast to the picture Peterson paints of postmodernists in lock-step with Marxism, Lyotard explicitly disavowed Marxism, Foucault left a Stalinist communist party—removing Marxist content from later editions of Mental Illness and Psychology before attempting to stop its publication entirely—and Derrida ‘d[id] not call for a return to the communist project [but] instead s[aw] Marx as a ghostly presence within liberal democracy, after the fall of the Soviet Union and the so-called “end of history”’.14 Furthermore, with regard to Derrida,
Specters of Marx is unequivocally loathed by Marxists of a certain persuasion [and] those who found something of value in Derrida’s reading were surprised by it at the time, given the prevailing opposition between Marxist and deconstructionist camps in the academy.15
Finally, postmodern political alignment spans from leftists like Foucault to conservatives like Peter Blum. Thus, Peterson’s idea of postmodern neo-Marxism appears as a reconfigured cultural Bolshevism, and it reveals his misunderstanding of both postmodern and Marxist thought while shedding some light on his paranoia surrounding Bill C-16.
Bill C-16 was designed to protect trans legal rights in Canada. To accomplish this, it added ‘gender identity or expression’ to the Canadian Human Rights Act (CHRA).16 In doing so, the rights of trans individuals are brought within other protected classes: banks and landlords, for example, are prevented from gender identity and gender expression discrimination similar to how they are prevented from racial or sexual discrimination. This amendment is not particularly revolutionary; in fact, ‘[t]he federal government was late to this game—most of the provinces and territories had already included gender identity and gender expression in their provincial human rights code’.17 After a decade-long battle for trans rights by various members of parliament, the government-sponsored Bill C-16 emerged, based off of similar bills previously introduced by private members.18
Bill C-16 set its sights on two bodies of law: the CHRA and the Criminal Code. With regard to the CHRA, the bill added ‘gender identity and gender expression’ to section 2, thus including the prohibition of discrimination on the basis of gender identity and gender expression amongst race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, genetic characteristics, disability and pardoned/suspended conviction.19 In addition, C-16 added ‘gender identity or expression’ to the prohibited grounds of discrimination found in section 3(1), again including it amongst the same terms as found in section 2.20 In regard to the Criminal Code, Bill C-16 added ‘gender identity or expression’ as an identifiable group under sections 318 and 319. Other identifiable groups under these sections include ‘any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, … or mental or physical disability’.21 It also added ‘gender identity and expression’ to section 718.2(a)(i), thus permitting a court’s consideration of one’s gender identity and/or expression in sentencing for hate crimes; other factors courts may consider include ‘race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor’.22 Simply put, existing law found in the Criminal Code and protections already offered by the CHRA extend to gender identity and expression after Bill C-16—that is it.
While initial objections to Bill C-16 paralleled objections to similar, previous bills, opposition to the bill was re-invented following Peterson’s critiques. Originally, two main strategies were deployed: (1) gaslighting, through an appeal to ‘rigorous principles of good law-making’, the argument was that C-16 could not be plainly understood and that the terms ‘gender identity’ and ‘gender expression’ are vague; and (2) fear-mongering, where trans rights were framed as threatening to women and children and empowering to sexual predators.23 After Peterson’s rise in popularity, the oppositional discourse shifted to focus primarily on C-16 as a threat to freedom of expression. Peterson’s unfounded concerns were not only echoed by the media outlets that gave him platform but also by politicians, adding to the authority of his claims. Senator Donald Plett, during the bill’s second reading, argued:
Political correctness authoritarians have narrowed the scope of acceptable thought and discourse in academia and, by extension, the general public. However, we as legislators and policy-makers should not be afraid of the difficult conversations. In fact, it is outrageous and irresponsible to do so. Legislation that has serious implications on freedom of speech—and, for the first time in Canadian law, compelled speech—cannot be passed so flippantly without thorough public discourse, debate, and consideration.24
With Peterson’s post-truth concerns, in turn, seemingly legitimised, those in favour of the bill were now faced with rebutting C-16 as anathema to freedom of expression.
Contrary to the growing narrative, Bill C-16 carried no risk of criminalising the misuse of gender pronouns. The amendment Bill C-16 offers section 718(2)(a)(i) is not a new offence—it merely means that, where one commits a murder, assault or some other offense already in the Criminal Code, a harsher sentence may be considered if the crime was motivated by hatred, be it a hatred of the victim’s race, sex or, as Bill C-16 simply adds: gender identity or expression. Bill C-16’s hate speech amendments also do not make it a crime to misuse pronouns. Section 318 criminalises advocating or promoting genocide, section 319(1) criminalises the public incitement of hatred and section 319(2) criminalises the wilful promotion of hatred. With regard to section 318, legal minds have pointed out that ‘the misuse of pronouns is not the legal equivalent of advocating the death and destruction of trans and gender non-binary individuals and is in no way actionable under this provision’.25 Section 319(1) also has a high threshold that mere misuse of gender pronouns cannot meet; the incitement must be ‘likely to lead to a breach of the peace’, and Canadian case law requires a threat of violence: ‘A breach of the peace contemplates an act or actions which result in actual or threatened harm to someone’.26 Finally, section 319(2) ‘has been interpreted by the Supreme Court of Canada as only applying to the most extreme forms of speech’—speech that ‘goes far beyond merely discrediting, humiliating or offending victims’.27 Thus, none of the amendments offered by Bill-C16 to the Criminal Code carry any consequence of criminalising pronoun misuse alone.
Concerns that flared around Bill C-16’s CHRA amendment were likewise unfounded. The Ontario Human Rights Commission (OHRC) issued a guidance policy for consideration by human rights tribunals—the Policy on Preventing Discrimination Because of Gender Identity and Expression—and included amongst various actions that may indicate gender-based harassment is the refusal to refer to an individual by their ‘proper personal pronoun’. With Bill C-16’s addition of ‘gender identity or expression’ to the CHRA, fears swirled about blanket compelled language. However, OHRC responded by stating:
Refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity, or purposely misgendering, will likely be discrimination when it takes place in a social area covered by the Code, including employment, housing and services like education.28
Furthermore, the OHRC guidance is not a legally binding body of literature, but simply a guideline for considerations. With (1) the removal of hate speech laws from the CHRA in 2013, (2) the Supreme Court of Canada upholding the hate speech laws under the Criminal Code as constitutional, and (3) the fact that Bill C-16 only adds gender identity and expression to the existing prohibited grounds of discrimination in the CHRA, ‘[a]ll Bill C-16 does is add the protections already contained in Canadian law to include trans and non-binary individuals’.29 With nothing in the CHRA or Bill C-16 requiring specific pronoun usage, the Supreme Court of Canada may, someday, nevertheless determine that people have the right to be referred to with a specific pronoun, and ‘articulate the factors and context in which such pronoun misusage will constitute a violation of the CHRA’, whereafter ‘tribunals and courts … will balance this right with the competing right to freedom of expression’—but this would be a future determination by the Supreme Court of Canada; again, nothing in Bill C-16 carries such a legal consequence.30 Thus, Bill C-16’s amendments to the CHRA and the Criminal Code are constitutional, they do not violate an individual’s freedom of expression and they do not make pronoun misuse legally actionable.
The term ‘gender identity’ originated in 1960s psychiatry to describe a break between one’s sex and internal sense of gender. Robert J. Stoller and Ralph R. Greenson coined the term ‘gender identity’ at a 1963 conference on homosexuality, and in 1964 Stoller described it as ‘the sense of knowing to which sex one belongs … the awareness “I am male” or “I am a female”’.31 According to Stoller, one’s gender identity was made up by a combination of physical anatomy, external influences from others and a biological force that ‘seems to provide some of the drive energy for gender identity’ while being ‘hidden from conscious and preconscious awareness’.32 Greenson, on the other hand, believed that the desire to break from one’s biological sex was to escape identification as a homosexual.33 In 1966, under the Gender Identity Program at Johns Hopkins Medical Center, doctors began performing gender confirming surgery; later that year, Harry Benjamin released ‘The Transsexual Phenomenon’, aimed at capturing the concept and experience of trans identity.34 ‘Gender identity disorder’ emerged in the third edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM); while ‘gender dysphoria’ replaced ‘gender identity disorder’ in the fifth edition, the DSM ‘continued to rely on the language of ‘gender identity’ in its explanatory notes’.35
Usage of ‘gender expression’ evolved from the concept of gender roles around the 1970s. Richard Green and John Money first used ‘gender role’ to describe ‘all those things that a person says or does to disclose himself or herself as having the status of a boy or man, girl or woman, respectively’.36 In the 1980s, Spencer E. Cahill drew distinction between ‘gender identity’ and ‘gender expression’, arguing that ‘gender identity emerges early in the child’s biography, [but] its expression and stability depends on subsequent interactional experience’.37 The concept of gender expression surged in the 1990s, with gender theorists such as Judith Butler examining performative dimensions of gender. Butler argued that ‘gender is not a noun’ and ‘gender proves to be performative—that is, constituting the identity it is purported to be’, or, stated another way, ‘[t]here is no gender identity behind the expressions of gender; that identity is performatively constituted by the very “expressions” that are said to be its results’.38 Thus, while gender expression, like gender identity, first surfaced in North American psychiatric discourse, its development is less clear, as gender expression was used interchangeably with other terms until it became more popular around the 1990s.
Gender identity and gender expression, as discrete terms, entered North American legal discourse decades after they first gained acceptance in the psychiatric field. Trans people began petitioning governments to change the designated sex on their driver’s licenses in the 1970s, and while gender identity was a fresh concept, law-makers emphasised terminology that focused on surgery, seemingly in an attempt to narrow the scope of legislation.39 While provinces across Canada passed amendments to allow trans individuals to change their sex markers, the United Kingdom explicitly prohibited alterations of sex designations on their birth certificates following Corbett v. Corbett.40 Meanwhile in the United States, the City of Minneapolis introduced the first express protections for trans people against discrimination, and other cities joined suit.41 Despite ‘gender identity’ gaining traction, the term did not appear in any of these laws, and would not appear in North American jurisprudence until the 1980s, where it ‘migrated from medical to legal discourse as the direct consequence of psychiatric evidence introduced in a range of different areas of law’.42 The term emerged in a North American human rights instrument for the first time after the City of San Francisco added ‘gender identity’ to its local anti-discrimination ordinance in 1994.43 Throughout the 1990s, other local US jurisdictions passed similar amendments, and in the late 1990s, following a report entitled ‘Finding Our Place: Transgender Law Reform Project’, the British Columbia Human Rights Commission called for trans rights and protections against discrimination.44 In this report, authors used ‘gender identity’ to refer both to one’s internal sense of gender and one’s performance of gender. The term continued to serve as capturing both of these aspects throughout North American jurisprudence; this term’s use made its way into international law in 2007 when it was included in the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. Only recently has a distinction been made between ‘gender identity’ and ‘gender expression’, with legislation such as Bill C-16 and the Gender Expression Non-Discrimination Act leading the way.
North American case law shows that courts are inclined to limit the scope of ‘gender identity’ and ‘gender expression’, preferring a narrower interpretation that should doubly serve to assuage the unfounded fears of their legal abuse. Historically, as has been described, courts and legal bodies have sought to narrowly extend protections to trans individuals, such as by requiring medical surgery. These trends reveal a disposition to make sure that those trans individuals exercising their rights are, in a clear sense, ‘really trans’, or within the scope of the envisioned protections. For example, where a cis man argued that he faced discrimination because of his employer’s ‘clean shaven policy’, the Ontario Human Rights Tribunal denied extension of gender expression protections, reasoning that
[t]here is nothing to indicate that bearded men suffer any particular social, economic, political or historical disadvantage in Canadian or Ontario society, absent any connection between the wearing of a beard and matters of religious observance or perhaps some link to a protected ground in the Code other than sex or gender expression.45
While the tribunal, in its decision, left open the possibility that ‘gender expression’ protections may, in the future, extend universally—even to cis individuals—the caution exhibited by the tribunal, and the diligence in examining the factual context of the issue before them, remains in stark contrast to the visions of abuse conjured by Peterson. With courts and legal bodies continuing to wrestle with trans rights, it is important to recognise a long and storied history of violence and discrimination against trans individuals; with over 50 years of conservative applications, cautious courts and moderate progress, the popularisation of fears such as Peterson’s appears not only trivial, if not completely unfounded, but also privileged and affirmatively damaging to a vulnerable class of people.
Despite the extensive work of lawyers and legal scholars, Peterson’s narrative nevertheless exerted a vice grip on public discourse surrounding trans rights. No longer were activists tasked with de-bunking the scenario of a hypothetical bathroom assailant; instead, they were forced to show why Peterson’s claims were unfounded. Perhaps the reason Peterson’s claims were so strong was precisely because they were so unfounded. Along with the fact that legal writing is often difficult to understand to those unfamiliar, that following bills can be tedious to the every person and that reactionary facets of Alt-Right politics were growing in popularity, specifically ‘anti-pc’ sentiments, Peterson gave some people exactly what they were looking to hear. With his authority as a university professor—disregarding the lack of legal background—media outlets were inclined to give Peterson platform, and Peterson’s statements about Bill C-16 slid perfectly into Alt-Right and popular culture. Peterson created a beast that could not be debunked, because it didn’t exist—in effect, activists had to disprove not an error or even a series of error, but a crafted fiction based in a wider, stranger conspiracy about higher education and Marxism.
Ultimately, the history of how Anglo-Saxon law has dealt with gender should come as a comfort to conservatives. The law’s treatment of gender has emerged out of and continues to be at the behest of current science. Courts have shown great caution in carrying out the letter of the law in regard to trans individuals and gender legislation. Furthermore, legislation regarding gender has shown a continued narrow history—that the rights afforded to trans people by emerging law is not the extension of new rights, but to provide an instrument through which trans people can exert their rights and protections as equal to others. Although it may be tempting to call trans legislation benign for the sake of assuaging fears, such a statement carries immense privilege, because while trans legislation does not have negative effects for cis-gendered individuals, it does have immense positive effects for trans individuals—it is in no way simply benign for them, but in fact necessary and powerful.
1 Jordan Peterson, Professor against political correctness, Part I, YOUTUBE (Sep. 27, 2016), https://www.youtube.com/watch?v=fvPgjg201w0.
2 Ibid.
3 Ibid.
4 Ibid.
5 Antontella Artuso, U of T prof told to use gender pronouns students want, TORONTO SUN (Oct. 19, 2016), https://web.archive.org/web/20181221092547/https://torontosun.com/2016/10/19/u-of-t-tells-outspoken-prof-to-stop-making-public-statements/wcm/4f463c2a-5a72-45ac-9e28-3dfc853cc1fd.
6 Jordan B. Peterson, Canadian gender-neutral pronoun bill is a warning for Americans, THE HILL (Oct. 18, 2016), https://web.archive.org/web/20190128041128/https://thehill.com/blogs/pundits-blog/civil-rights/301661-this-canadian-prof-defied-sjw-on-gender-pronouns-and-has-a.
7 Jordan B. Peterson, Postmodern NeoMarxism: Diagnosis and cure, YOUTUBE (June 28, 2017), https://www.youtube.com/watch?v=s4c-jOdPTN8 (‘We already know what the Marxist doctrines have done for oppressed peoples all around the world, and the answer to that mostly was imprison them, enslave them, work them to death or execute them. And as far as I can tell that’s not precisely compensurate [sic] with any message of compassion. So I don’t think the post-modern neo-marxists have a leg to stand on ethically, intellectually, or emotionally’.).
8 Ibid.
9 Jordan B. Peterson, Postmodernism and cultural Marxism, YOUTUBE (July 6, 2017), https://www.youtube.com/watch?v=wLoG9zBvvLQ.
10 Ibid.
11 Tabatha Southey, Is Jordan Peterson the stupid man’s smart person?, MACLEAN’S (Nov. 17, 2017), https://web.archive.org/web/20171201041429/http://www.macleans.ca/opinion/is-jordan-peterson-the-stupid-mans-smart-person/.
12 Without getting too deep into a debate over semantics and Peterson’s usage of terms, neo-Marxism grew out of and is narrowly traced to the Frankfurt School. Jürgen Habermas, among other critical theorists from the Frankfurt School, was a major critic of postmodernism as well as polemicists against Derrida, Foucault, Lyotard and Benhabib. While critical theory shares some traits with postmodernism in critiques of traditional philosophy and social theory, there are major differences between the two that make them largely antagonistic (e.g. ‘postmodern theorists … generally reject rationalism, the lust for categorical distinctions and systematization, and the global takes on history and society that are associated with Habermas’.) STEVEN BEST AND DOUGLAS KELLNER, CRITICAL THEORY: POSTMODERN INTERROGATORIES, at 215–6 (1991). Nonetheless, Peterson’s usage of ‘postmodern neo-Marxism’ amounts to little more than assertion that postmodernists are actually covert Marxists. He explicitly states, many times, that postmodernists are secretly Marxists, and that their donning of ‘postmodernism’ is nothing more than ‘a sleight of hand’ to escape the consequences of being labelled a Marxist. Peterson, supra note 9.
13 Shuja Haider, Postmodernism did not take place: On Jordan Peterson’s 12 rules for life, VIEWPOINT MAGAZINE (Jan. 23, 2018), https://web.archive.org/web/20190103192817/https://www.viewpointmag.com/2018/01/23/postmodernism-not-take-place-jordan-petersons-12-rules-life/ (‘Armed with this dubious secondary source, Peterson is left making statements that are not only mired in factual error, but espouses a comically reductive conception of how social life and history work. He takes a common misunderstanding at face value, proceeding to build a whole outlook on it’.).
14 Ibid. Peterson’s belief that Derrida is a secret Marxist appears to stem from this misunderstanding of Specters of Marx.
15 Ibid.
16 Brenda Cossman, Gender identity, gender pronouns, and freedom of expression: Bill C-16 and the traction of specious legal claims, 68 UNIV. OF TORONTO L.J. 37, 38 (2018).
17 Ibid. at 39.
18 See, e.g.,Bill C-389, An Act to Amend the Canadian Human Rights Act and the Criminal Code (Gender Identity and Gender Expression), 2nd Sess., 40th Parl. (2009) (This bill was first introduced by MP Bill Siksay in the House of Commons in 2005, before being introduced again in 2009 and last introduced in the 40th Parliament, 3rd Session, which ended in March 2011); see, e.g., Bill C-279, An Act to Amend the Canadian Human Rights Act and the Criminal Code (Gender Identity), 2nd Sess., 41st Parl. (2015).
19 Canadian Human Rights Act, R.S.C., 1985, c.H-6 s.2.
20 Canadian Human Rights Act, R.S.C., 1985, c.H-6 s.3(1).
21 Criminal Code, R.S.C. 1985, c.46 s.318(4).
22 Criminal Code, R.S.C. 1985, c.46 s.718.2(a)(i).
23 ALLYSON M. LUNNY, DEBATING HATE CRIME: LANGUAGE, LEGISLATURES, AND THE LAW IN CANADA, 106 (2017); Cossman, supra note 16, at 57–8.
24 Emphasis mine. See Canada. Parliament. Senate. Debates, 42nd Parl., 1st sess., November 22, 2016: 1762. Archived August 1 2018. https://web.archive.org/web/20180801194834/https://sencanada.ca/Content/SEN/Chamber/421/Debates/pdf/074db_2016-11-22-e.pdf.
25 Cossman, supra note 16, at 47.
26 Criminal Code, R.S.C. 1985, c.46 s.319(1); Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (Ont. CA); Cossman, supra note 16, at 47.
27 Cossman, supra note 16, at 48; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467.
28 Ontario Human Rights Commission, Questions and answers about gender identity and pronouns, OHRC, https://web.archive.org/web/20181017002530/http://www.ohrc.on.ca/en/questions-and-answers-about-gender-identity-and-pronouns (last visited Oct. 10, 2018).
29 Cossman, supra note 16, at 56.
30 Ibid. at 55–6.
31 Robert J. Stoller, A Contribution to the study of gender identity, 45 INT’L J. PSYCHO-ANALYSIS 220, 220 (1964).
32 Ibid.
33 Ralph R. Greenson, On homosexuality and gender identity, 45 INT’L J. PSYCHO-ANALYSIS 117, 219 (1964).
34 JOANNE MEYEROWITZ, HOW SEX CHANGED: A HISTORY OF TRANSSEXUALITY IN THE UNITED STATES, 219 (2002); Kyle Kirkup, The origins of gender identity and gender expression in Anglo-American legal discourse, 68 UNIV. OF TORONTO L.J. 80, 88 (2018).
35 Kirkup, supra note 34, at 89.
36 Richard Green and John Money, Incongruous gender role: Nongenital manifestations in prepubertal boys, 131 J. NERVOUS & MENTAL DISEASE 160, 160 (1960).
37 Spencer E. Cahill, Directions for an interactionist study of gender development, 3 SYMBOLIC INTERACTION 123, 130 (1980).
38 JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY, 24–5 (1990).
39 Kirkup, supra note 34, at 90–1.
40 See, e.g., Act to Amend the Vital Statistics Act, S.S. 1974–5, c 61; see, e.g., Act to Amend the Health Act, S.N.B. 1975, c 27, ss 2–3; see, e.g., Act to Amend Ch 330 of the Revised Statutes, 1967, the Vital Statistics Act, S.N.S. 1977, c 55; see, e.g., Act to Amend the Vital Statistics Act, S.O. 1978, c 81, s 2.
41 Kirkup, supra note 34, at 93.
42 Ibid. at 94.
43 San Francisco Ord. 433–94 (Dec. 1994).
44 See, e.g., Iowa City Ord. 95–3697 (Oct. 1995).
45 Browne v. Sudbury Integrated Nickel Operations, 2016 HRTO 62 (2016).