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Equality means that you can argue in favour of voting for transgendered people, the Tribunal wrote, but you can’t argue against voting for them. You cannot say what you think unless you think the right thing.

At the heart of Western legal culture lies the principle that the law applies equally to all. Justice should be blind, the idea goes, meaning that it should not care if you are rich or poor, man or woman, gay or straight, black or white. Everyone is subject to a common set of standards. Over the past 30 years, Canada’s courts and tribunals have flipped this idea on its head. Spearheaded by the Supreme Court of Canada, equal application of the law has been supplanted by the opposite proposition: different rules should apply to different groups so as to produce equal outcomes. In the Oger case, the Tribunal quoted one of Canada’s leading constitutional law texts, written by Peter Hogg, who wrote “different treatment in the service of equity for disadvantaged groups is an expression of equality, not an exception to it.” Equality of outcome means that some people are more equal than others.

Equality of outcome means that some people are more equal than others

These two versions of equality are incompatible. If the same rules apply to everyone then different standards cannot be applied to different people. If the law applied equally, Whatcott would be able to express his condemnation of transgenderism as freely as others criticize white privilege or the hegemony of patriarchy. Free speech does not have to make sense. You are free to speak your thoughts not because they are rational or correct but because they are yours.