Bruce Pardy: Human rights were conceived to liberate. They protected people from an oppressive state

When University of Toronto professor Jordan Peterson posted his now notorious YouTube video spelling out his refusal to use non-gendered pronouns, activists expressed their outrage. Non-gendered people have the right to be accommodated and respected, the protests went, and Peterson must use language consistent with those rights. These objections illustrate what few activists or politicians will openly acknowledge: “Human rights” are now a zero-sum game. Giving rights to some means taking them from others.

On Thursday, the Senate passed Bill C-16, the Liberal government’s legislation that adds “gender identity or expression” to grounds of discrimination in the Canadian Human Rights Act. Bill C-16 was in part the motivation for Peterson’s video. The act applies to federal subjects (including airports, banks, the military and federally regulated industries), while equivalent provincial codes apply to remaining areas of personal and commercial activities (including most workplaces, schools, universities, hospitals and so on). Most provinces recently added the same or similar terms to their discrimination provisions.

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Few Canadians realize how seriously these statutes infringe upon freedom of speech. The Ontario Human Rights Commission has stated, in the context of equivalent provisions in the Ontario Human Rights Code, that “refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity … will likely be discrimination when it takes place in a social area covered by the Code, including employment, housing and services like education.”

Human rights were conceived to liberate. They protected people from an oppressive state. But freedom from interference is so 20th century. Modern human rights entitle

In other words, failure to use a person’s pronoun of choice — “ze,” “zir,” “they” or any one of a multitude of other potential non-words — will land you in hot water with the commission. That, in turn, can lead to orders for correction, apology, Soviet-like “re-education,” fines and, in cases of continued non-compliance, incarceration for contempt of court. This peril is exactly what Peterson warned of in his video, for which he was mocked for scaremongering.

Human rights were conceived to liberate. They protected people from an oppressive state. Their purpose was to prevent arbitrary arrest and detention, torture, and censorship, by placing restraints on government. The state’s capacity to accommodate these “negative rights” was unlimited, since they required only that people be left alone.

But freedom from interference is so 20th century. Modern human rights entitle. We are in the middle of a culture war, and human rights have become a weapon to normalize social justice values and to delegitimize competing beliefs. These rights are applied against other people to limit their liberties.

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When speech is merely restricted, you can at least keep your thoughts to yourself. Compelled speech makes people say things with which they disagree

Freedom of expression is a traditional, negative human right. When the state manages expression, it threatens to control what we think. Forced speech is the most extreme infringement of free speech. It puts words in the mouths of citizens and threatens to punish them if they do not comply. When speech is merely restricted, you can at least keep your thoughts to yourself. Compelled speech makes people say things with which they disagree.

Bill C-16, like provincial human rights codes, does not make specific reference to speech. In the Senate, supporters of C-16 fell over each other denying that the legislation would compel language. When Justice Minister Jody Wilson-Raybould testified before the Senate’s Legal and Constitutional Affairs Committee, she specifically denied that the bill would force the use of gender-neutral pronouns. There are reasons to doubt her sincerity. First, human rights commissions say otherwise. Along with human rights tribunals, they have primary control over the meaning and application of code provisions, something the justice minister must know. Human rights commissions are not neutral investigative bodies but advocacy agencies with expansive agendas. In comparison, courts and governments play only a minor role in interpreting these statutes.

Traditional negative human rights give people the freedom to portray themselves as they wish without fear of retribution. Not so the new human rights

Second, Senator Donald Plett proposed an amendment to the bill that would have clarified that it was not the bill’s intention to require the use of particular pronouns. The minister flatly rejected it, as did Liberal and most “independent” senators. In fact, like its provincial counterparts, Bill C-16 will give transgendered and non-gendered people the ability to dictate other people’s speech.

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Some senators expressed the view that forcing the use of non-gendered pronouns was reasonable because calling someone by their preferred pronoun is a reasonable thing to do. That position reflects a profound misunderstanding of the role of expression in a free society. The question is not whether required speech is “reasonable” speech. If a statute required people to say “hello,” “please” and “thank you,” that statute would be tyrannical, not because “hello,” “please” and “thank you” aren’t reasonable things to say, but because the state has dictated the content of private conversation.

Traditional negative human rights give people the freedom to portray themselves as they wish without fearing violence or retribution from others. Everyone can exercise such rights without limiting the rights of others. Not so the new human rights. Did you expect to decide your own words and attitudes? If so, human rights are not your friend.

Bruce Pardy is professor of law at Queen’s University. He testified against Bill C-16 before the Senate’s legal and constitutional affairs committee.