Gender Identity, Gender Pronouns and Freedom of Expression: Bill C-16 and the Traction of Specious Legal Claims

Abstract

Bill C-16, An Act to Amend the Canadian Human Rights Code and the Criminal Code was a government bill intended to provide equal protection of the law to trans and gender non-binary Canadians. It protects individuals from discrimination within the sphere of federal jurisdiction, as well as protects against hate propaganda and hate crimes, on the basis of gender identity and gender expression. The opposition to previous legislative attempts to protect trans rights focused on questions of sex segregated spaces such as public bathrooms. In the course of the debate over Bill C-16, however, a new discourse of opposition emerged: Bill C-16 was said to be a fundamental threat to freedom of expression. This article argues that the claim lacks validity, yet gained remarkable traction. It traces the shifting opposition discourse, and argues that freedom of expression provided a new and legitimizing discourse for longstanding conservative opposition to trans rights. Finally, it seeks to explain the traction of the specious legal claims, contextualizing them within existing public discourses of political correctness and freedom of expression under attack.

Keywords: Gender Identity, Gender Expression, Freedom of Expression, Trans Rights