Sunday, March 05, 2017

Senator Plett Reprises His Complaints on Bill C-16

Whether we are talking about Bill C-16, Bill C-279 or Bill C-389, there has been one consistent thing in the Senate - the voice of Senator Plett droning on about how terrible this legislation is.  This week, second reading of Bill C-16 happened in the Senate, and sure enough Senator Plett had to stick his oar into the waters (audio here ... if you can stomach it).

I'm not going to dwell overly much on the whining note that Senator Plett starts off with:

Senator Plett: This is a complete and utter fabrication, colleagues. There was a similar narrative when Bill C-279, a previous version of this bill, was in this chamber in the form of a private member's bill. I had introduced three important amendments at committee, which were adopted. Two of those amendments were supported by Senator Mitchell himself, and any or all of those amendments would have had the same effect of sending the bill back to the house. The bill then died upon prorogation, as we all know. 
I will be the first to admit I was opposed to Bill C-279 and I'm opposed to Bill C-16, but I will not and never will stand to be falsely accused of stalling and/or delaying legislation.
Suffice it to say that Senator Plett's approach to Bill C-16 is exactly the same as his approach to Bill C-279.  If that leaves the impression that he is being obstructionist, perhaps the good senator should revisit his approach to the issue in the first place.  It's not like he's lacked for time to become appropriately informed.

Senator Plett's Arguments

Argument #1:  "What Is Gender Expression?"

Plett's opening salvo is aimed at the inclusion of the term 'gender expression' in Bill C-16.  He argues that gender expression doesn't apply to any discretely identifiable group, and therefore creates all sorts of problems: 
Colleagues, gender expression was not included in Bill S-279 so this is a new term for us to consider. For that reason I would like to start with some of the problems with including "gender expression" into the Criminal Code as an "identifiable group." 
Presently, identifiable group is any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability. To qualify under the hate speech or hate crime provisions, an accused would need to have demonstrated a bias, prejudice or hate to this identifiable group. 
While the Canadian Human Rights Commission has made it clear that transgender people are already covered in the existing act, it could be argued that transgender people could qualify as an identifiable group under gender identity. 
However, "gender expression" encompasses no group. Everyone expresses his or her gender, and there is no way to categorize such expression into a group. How do you have a bias, prejudice or hatred against expressions of gender? What would hate speech on the grounds of gender expression even look like? 
For example, in Ontario, where gender identity and gender expression are enshrined in the Human Rights Code, a man recently took his employer to the Human Rights Tribunal because the factory required a clean-shaven face. The complainant claimed that growing a beard was an expression of his gender and that the policy prevented him from doing so. It was, therefore, discriminatory based on gender expression.
However, what Senator Plett fails to acknowledge is that when we are talking about gender identity, we also must discuss the matter of expression.  For example, a transsexual person who is still in the early stages of dealing with their situation may well "express" their gender identity in ways that are at odds with societal norms.  A forty-something transwoman may well dress like a 19 year old party girl at times.

In the context of the workplace, outside of workplace safety issues, workplaces attempting to dictate specific codes such as "clean shaven", or specific modes of dress is in fact a form of policing an individual's freedom of expression - a fundamental right described in S2(b) of Canada's Charter of Rights and Freedoms.  In short, Gender Expression could be argued as already specifically protected under Canadian law.
Constitutionality aside, think about the absurdity of this. Should there be a special human rights protection and hate propaganda provision relating to the way each one of us stands, speaks, dresses, moves or styles our hair? 
"Gender expression" is a very problematic, new component to this bill, but the overarching issues go well beyond this addition.
Herein lies the rub.  Transgender people do not merely experience discrimination and hate because of their gender identity, but also far more prevalent is the experience of discrimination resulting from the expression of their gender identity.  Someone who appears generally masculine wearing a skirt and heels on the bus is very likely to be subjected to ridicule, but worse people often find themselves losing their jobs because of their gender expression.

The argument that "we don't know what gender expression is" is in some respects profoundly spurious.  We know damn well what it is, and discrimination based on it happens on a daily basis - usually directed at people who violate the societal norms of the day.  Whether that is a masculine looking person wearing a skirt and tights or a feminine appearing person who chooses to wear a tuxedo instead of a gown to a party (although females in our society have had much greater freedom in terms of the consequences of violating social norms about dress than males - but that is a subject for another article).

Is this "difficult" to understand?  Sure.  It's tricky, it's ephemeral, and it is unquestionably hard to create an absolute definition.  So what?  The same can be said about the concept of religion .  Try and define what a religion is (or is not) without anchoring it to a particular religious tradition, and you will rapidly encounter the same kinds of rhetorical problems that Senator Plett is complaining about here.  I'm not at all certain that I agree with Plett that this is unreasonable, or that it cannot be figured out.

We pay our judges well in this country to figure out really thorny, prickly problems.  The argument that "gender expression" is not well defined is, in my opinion, spurious.  Like many other matters, it can be understood within the context of gender roles that are common in society, and the issues faced by those whose identities oblige to violate those norms.

Argument #2:  But The Chromosomes!

Second, with this legislation, we are prematurely shutting down a discussion on gender that is far from settled. The bill itself is predicated on a flawed and self-contradictory social science theory. 
For starters, we are told that sex is assigned at birth. This is stated clearly in the Human Rights Code as well as the previous version of the bill in which definitions were included. 
I don't believe that I need to break this down for most of you, but sex is not assigned at birth. Sex is a biological fact. It simply exists. It is determined by anatomy and chromosomes. 
The same proponents in the actual definition of gender identity state that trans people have an identity that differs from stereotypical gender norms. This means that society has created certain norms and stereotypes for the male and female gender that we each adapt to. In other words, the gender norms are assigned, yet it is also argued that this identity is innate for trans people. So to summarize, gender, or one's being masculine or feminine, is based on social constructs for the vast majority of us. However, for trans people, gender is innate. 
Some proponents of this type of legislation believe that all 70- plus known gender identities are innate, while others chalk up one's place on the spectrum to gender creativity, in which individuals can choose a gender identity for themselves. 
The gender spectrum, by the way, includes terms like gender- fluid, which is a boy one day, a girl the next, gender-gifted, masculine-of-centre, et cetera. 
This theory is also based on the concept that sex, gender, gender identity and sexual orientation all vary independently of one another — an interesting assertion for a sexually reproducing species. 
One professor of transgenderism studies from the University of Toronto, on a debate on this very bill, stated: "There is no such a thing as biological sex." 
When he was pressed — for the sake of brevity — he decided not to elaborate, or didn't have the answers. However, he did qualify the statement as not a personal opinion but scientifically proven. You can't make this up. Students in the Transgender Studies program at the University of Toronto are learning that there is no such thing as biological sex.
This is one of the worst cases of "if you can't dazzle them with brilliance, baffle them with bs" arguments I have ever read.  Perhaps it is better seen as an illustration of Senator Plett's own confusion and inability to comprehend rather than some kind of brilliant rhetoric.

First, by throwing in arguments related to anatomical sex, Senator Plett is already off-base.  Gender Identity is only partially about an individual's genitalia at the best of times.  The argument that "sex is a fact" is clearly another attempt to be absolutist about the matter.  Sure, you can identify that the body is male or female in most cases.

Argument #3: Look At What Happened To These Brilliant People

Part 1:  Jordan Peterson

As University of Toronto Professor Jordan Peterson pointed out, with legislation like this, we are literally enshrining the social science theory of social constructionism as the legally sanctioned scientific doctrine of the land. As he said, "Look out, evolutionary biologists. The PC police are coming your way." 
We have seen the effects that this ideological push has already had on scientists, professors and legislators who do not buy this idea of an infinite gender spectrum. When I said we are prematurely closing the debate on gender, it is because ideology is prevailing over science. 
Let's be clear here.  Peterson has been an unreasonable crank ever since he burst onto the scene.  His objection?  Really it boils down to "I don't want to have to respect another person by using the pronouns they prefer".  Since then, he has become the darling of the far right because he's "a professor, donchaknow?", and he's a psychologist ... so he must know something about gender identity.

So, for a second, let's take a look at how much Dr. Peterson has contributed to the literature on gender identity and sexuality, shall we?  A first search on Google Scholar shows us that Dr. Peterson's work is focused in different areas of psychology than gender identity.  A similar search on PubMed turns up similar results, along with one or two paper titles related to the "psychology of conservatism".  The first point is that Dr. Peterson is not a specialist in this area.

The argument that gender identity is a "social science theory" is simply false.  Yes, there is a social science area called 'Gender Studies', and yes, they do explore the social constructs associated with gender.  But to say that 'gender identity' (and expression) are unproven social science "theories" (which may be a poor use of the term theory) is to ignore the work of scientists over the last 130 years or so.   Dr. Peterson is free to object to the continuum model of gender identity if he wishes, but doing so also flies in the face so many other disorders in psychology that it would seem he is carrying some significant internal cognitive dissonance in order to maintain that belief.

Part 2:  Dr. Ken Zucker

Canada's leading expert on gender identity, Dr. Ken Zucker, who has no moral opposition to transgenderism and, in fact, has been an advocate for the trans community, has been fired and his clinic shut down because his service was out of step with current thinking. For background, an award-winning and renowned psychiatrist, Dr. Zucker, operated a clinic at CAMH — the Canadian Medical Association of Mental Health — specializing in gender identity issues. After treating hundreds upon hundreds of patients over the years, he realized that many children brought in to him by their parents with gender identity issues actually ended up being homosexuals as adults but not trans. 
Based on his work and the numerous studies confirming his findings, he told parents that when your little boy says, "I am a girl," best practice would suggest to correct him and say, "No, you are a boy." Dr. Zucker said that if this feeling continued past puberty and into early adulthood, obviously discussions around transition would need to take place.
However, to jump ahead, to push for the provision of hormone blockers to children who have asserted these feelings has long- standing and disastrous consequences. His critics have absurdly compared his watch-and-wait approach to conversion therapy — a failed effort to turn homosexual youth straight. 
This reasoned viewpoint has now been rejected by CAMH. The science and medical communities' findings and proclamations of best practices are now being trumped by a social justice movement. Think about that. The clinic did not put forward evidence to dispute Dr. Zucker's approach, but rather claimed that the approach is "out of step with current thinking." Not "current research" or "current science," but "current thinking." This is so wrong, colleagues. Not only has this leading expert lost his a job but will now be at risk of discrimination if he misgenders a child with the improper use of a pronoun.
 If, as Senator Plett asserts, Zucker's treatment approach was truly "wait and see", it would not have been subject to the criticisms it has received.  However, Zucker's approach is not a passive "sit back and let the child develop", but rather a coercive attempt to force the child into their assigned gender role.  This is not a new criticism by any means.  Zucker's work was being questioned in the early to mid 2000s by a number of people studying in this area (Tosh, 2011).
Zucker’s work at the CAMH GID clinic has been widely criticised by academics (e.g. Wilson, 2000; Wren, 2002; Menvielle & Tuerk, 2002; Hird, 2003; Langer & Martin, 2004; Lev, 2005; Bryant, 2008), organisations (e.g. Burleton, 2008; Choe, 2008; Queerty, 2009) and individuals concerned with LGBT issues and gender diversity. Zucker’s treatment has been described as ‘coercive’ (Ehrensaft, 2008, cited in Spiegel, 2008) and in some instances ‘abusive’ (Burke, 1996). (Tosh, 2011)
This is important to recognize.  Concerns about Zucker's work with children have been rolling around for some time.  I wouldn't expect Senator Plett, or any other Senator to be fully aware of this.  They aren't spending their time specializing in this area.  CAMH itself has long been criticized by the transgender community as a whole for having operated in a rigid 1970s "gender clinic" model for a very long time.  The pressure related to Zucker's part of the operation boiled over in 2014-15 when formal complaints about the practices used were made by past and present patients.  The practice review identified significant failings in Zucker's practice, not merely "being out of step" with current thinking, but being out of step with ethical practice in other important ways, including creating undue delays and obstacles in treatment.

Argument #4:  C-16 Makes Misgendering Someone A Crime

Having read the Bill C-16's text, I find this a particularly galling, and misleading characterization of the impact of Bill C-16.  While misgendering someone deliberately could certainly become evidence of discrimination, I doubt very much that individual instances would ever be seen as anything other than a "slip up".  However, let's take a closer look at Senator Plett's objections, shall we?
University of Toronto Professor Dr. Jordan Peterson got a lot of attention recently when highlighting this issue around artificially constructed gender neutral pronouns or preferred pronouns. When I say "preferred pronouns," I am referring to the infinite list that accompanies the 70-plus genders that one can choose to identify with, replacing the traditional he, she, his, her, et cetera. For example, some of these pronouns include ze, zir, zim, they, et cetera. But, as I said, the list is infinite and is purely at the discretion of the non-binary individual. Professor Peterson stated in a piece in the National Post:

. . . it is absurd to insist that each person should have the right to, or could practically, choose their own pronouns. 
For the law to mandate usage of this language is, both in his mind and mine, preposterous. 
In his article, he raised the case of New York, which now protects 31 genders listed in the law, including "gender gifted." New York is prepared to fine businesses up to US$250 million if owners or employees refuse to speak to each other properly. Professor Peterson points out that the 31 genders listed in New York's legislation are just ". . . a drop in the bucket compared to the number some would like us to use . . . ." 
Independent legal analysis has shown that Professor Peterson's account regarding compelled speech are, in fact, legitimate. Toronto-lawyer D. Jared Brown stated in a detailed legal opinion that this legislation will be an unprecedented infringement on freedom of expression and an infringement on the principle that Canadians ought to be free from having to mouth opinions and ideologies that are not their own.
Here's where this gets ridiculous.  First of all, the objection itself basically complains that Bill C-16 would "take away their right to invalidate another person by misgendering them".  Let's explore this for a moment.  One of the more common forms of discrimination that transgender people experience comes from those who "disagree" that their lived experience is valid.  The experience is often that a trans woman will find themselves referred to using male pronouns in discussion.  There is a fine line here.  If the misgendering is deliberate and persistent, even after being corrected (eg. "I'd prefer it if you used feminine pronouns when referring to me"), then yes, one could argue that it is part of a larger tapestry of behaviours that could be considered discriminatory or hateful.  At the very least, it is grossly disrespectful when done deliberately.

Per se, Bill C-16 does not lay out what constitutes discrimination with respect to Transgender people.  However, I think it is also relevant to acknowledge that racial discrimination often uses terms which are deeply invalidating to the target individuals (referring to someone from Pakistan as a "Paki" comes to mind as an example from my growing up years which was horribly dehumanizing).   The choice of language is often a key aspect of how discrimination is used to perpetuate the marginalization of the target.

I'm sure Senator Plett would find it quite invalidating if I were to refer to him using feminine pronouns.  Would that act in itself represent discrimination?  Probably not.  But if I were to add other patterns such as attempting to restrict the Senator's access to bathroom facilities based on my choice to view him as "feminine" (and therefore ineligible to use the male bathrooms), it would rapidly become a matter of discrimination, wouldn't it?

We should also acknowledge that Canada's approach to human rights law and the protections it provides has always been a matter not of "single incidents", but rather of establishing broader patterns of behaviour which constitute discrimination.  A single event may be the focus of a complaint, but the background patterns around the complaint are also considered.  In this context, it is important to understand that this does not mean speaking out in a reasoned, critical manner about the issues raised by transgender people is 'hate speech' per se.  However, doing so and being unwilling to consider other positions or contradictory evidence might eventually become that.

This is no different than criticizing the dogma of a particular faith on a matter.  For example, I might be personally very critical of the Catholic Church on matters of gender and sexuality (and I have been on this blog).  The difference is that I am both cognizant of the Church arguments, and I will take the time to debate them.  However, we must also recognize that debate is a two way thing.  If someone is able to demonstrate that I am misrepresenting the Church's dogma in my arguments, then I am willing to revise my position.

Argument #5:  C-16 Is Compelling Us To Use Language We Disagree With

On the Justice Canada website, in their published review on Bill C-16, as was mentioned, is a Q&A section. The question is whether there will be definitions of gender identity and gender expression in the bill. The answer is that they will leave the definition up to the courts, tribunals and commissions to determine. The Justice Canada explanation further states:

Definitions of the terms "gender identity" and "gender expression" have already been given by the Ontario Human Rights Commission, for example. The Commission has provided helpful discussion and examples that can offer good practical guidance. The Canadian Human Rights Commission will provide similar guidance on the meaning of these terms in the Canadian Human Rights Act. 
And with that statement of intent from the Department of Justice, we see that the federal human rights regime will mirror that found at the provincial level, including the policies. This practice of the federal commission mirroring Ontario's guidelines has become extremely common. 
Interestingly, after concerns about compelled speech were raised, this link to the Justice Department's page was deactivated. Thankfully, not before many of us had saved a copy.
The OHRC has produced a policy on gender identity and expression and what constitutes harassment and discrimination, including "refusing to refer to a person by their self-identified name and proper personal pronoun." Brown states:

What this means is that if you encounter a person in a sphere of activity covered by the Code, and you address that person by a pronoun that is not the chosen/personal/or preferred pronoun of that person, that your action can constitute discrimination.
For example, if you do not believe that there are more than two genders for personal or religious beliefs, or because science and evolutionary biology tell you otherwise, you must still use this made-up and ever-evolving language to describe non-binary or gender neutral persons. Keep in mind, there are in transgender people who think the idea of more than two genders is ridiculous; they simply more closely identify with the opposite gender.
Colleagues, this is not simply an infringement on freedom of speech and expression, but it is actually compelling speech. We are enshrining a social science theory on the existence of gender spectrum into law. Those who do not subscribe to that theory and refuse to be a mouthpiece for an ideology they cannot support are left in the dark.
So what is the big deal? I can provide any honourable colleagues who are interested with the full legal opinion to which I am referring, but Brown clearly outlines the direct path from the refusal to use preferred pronoun to imprisonment. Brown concludes his position with the following:

Given that the Supreme Court of Canada has found compelled speech to be a "penalty that is totalitarian and as such alien to the tradition of free nations like Canada even for the repression of the most serious crimes", it might be appropriate to examine Bill C-16 in greater detail to ensure that it remains consistent with Canadian constitutional principles and Canadian traditions of free expression.
I'm going to go on a bit of a rant here.  What is so hard for people like Senator Plett about acknowledging another person's lived experience?  If I were to take Senator Plett's position on matters of religion or race, there would be an uproar (and rightly so), and yet the Senator is utterly unwilling to consider how language and its use can form the basis of discrimination.  I wonder how he would feel if his job was constantly at risk simply because of his past, or present identity?

Existing anti-discrimination measures also constrain the use of language in a variety of ways.   For example, we do restrict the use of arguments used in the past to limit the rights of Japanese people in Canada (remember WWII?), or the accusations that Nazi Germany made against the Jewish people.  In both cases, we do so on the basis that such matters represent a gross misrepresentation of the affected peoples, and unreasonably affects their lives.  These are no less a matter of "compelling speech" than C-16 is.

Senator Plett wishes to disagree with what he calls disparagingly calls "gender theory" (with scare quotes)?  Cool, I'm up for the debate.  However, Senator Plett had damn well better be prepared to acknowledge and respond to the research literature I'm going to throw at him.  The problem here is that while I have always had problems with some of the theoretical models used in gender studies, I also recognize that far greater harm is done to individual lives as a result of overt (and covert) discrimination that transgender people experience every living day.

I do not see in C-16 anything that would substantively limit the debate that Senator Plett says he seeks.  What it would limit is the use of some of the common lies that are used to justify that discrimination on regular basis (and no doubt that is what Senator Plett and his allies fear the most - not the debate, but that the objective facts of the matter will render some of their most useful tools useless).

Argument #6: Ethics Of Safe Spaces

As Dr. Alice Dreger, bioethicist and professor at Northwestern University's Feinberg School of Medicine, said, parents who encourage their children to change genders "are socially rewarded as wonderful and accepting," while parents who try to take it slow "are seen as unaccepting, lacking in affection and conservative." She explained the phenomenon:

Parents don't like uncertainty . . . . They'd rather be told, "Here's the diagnosis, and it's all gonna turn out fine." 
This professor is actually a transgender advocate but prefers evidence to ideology.
There are feminist groups, women's groups and advocates for the protection of women in safe places who have serious concerns with embedding a gender spectrum theory into law which, in their words, reduces womanhood to a whim. There are also many women's advocacy groups who feel that the architects of this legislation have not given any thought to a gender-based analysis — the absence of which they claim is responsible for the lack of preservation of sex-based protections. 
It is interesting. The bill and the ideology surrounding it make a distinction between gender and biological sex in terms of identity but conflates the two when it comes to sex-segregated spaces. You can't have it both ways.
Feminist Meghan Murphy recently wrote in the National Observer:

The idea that gender is something internal, innate, or chosen — expressed through superficial and stereotypical means like hairstyles, clothing, or body language — is deeply regressive.
She continued:

Beyond misguided language there is the fact that we are very quickly pushing through legislation that conflicts with already established rights and protections for women and girls. 
Women's spaces — including homeless shelters, transition houses, washrooms, and change rooms — exist to offer women protection from men.
She states, "This reality is sex-based, not identity-based."
I have to take some exception to this line of reasoning by Senator Plett.  First, we have to recognize that Dr. Dreger is far from being an "advocate" for transgender issues.  Dr. Dreger has been among the most vocal supporters of the dubious work that Dr. J. Michael Bailey has done with regards to "researching" transsexuality.  That isn't to say that she doesn't have anything of interest to say, but she is hardly an authority on the subject of gender identity.

With respect to safe space, I agree that this is a complex domain.  C-16 does not make any specific recommendations in this regard.  Personally, it is my belief that this needs to be dealt with on a case-by-case basis for now until we have a better understanding of where gaps may lie, and whether or not there is a need for additional legislation.  There will be more cases like the VRRS v. Nixon to draw out those boundaries.  While such proceedings are unpleasant, I believe that case law is a far more appropriate instrument for addressing these issues.

We have to be very careful about arguments that boil down to "if a person has a penis, they are automatically going to be predators".  This is a gross oversimplification of the matter, and it is unreasonable to make such arguments.  Most MtF transsexuals are no more sexual predators than any other woman is.  The physical anatomy involved is irrelevant.  For Senator Plett to imply that "penis=predator" to justify the current dichotomy is inappropriate.

Argument #7:  The Slippery Slope

Further, anyone who believes that choosing one's identity and wanting a specially enshrined protection for that identity will stop at gender is, in this instance, short-sighted. I am the first to decry the slippery slope argument. It is often not helpful, not relevant and based on outlandish hypotheticals. However, there are groups emerging all the time that feel they should have should have been born differently or that they more closely identify with another identity. There are people who in their heart of hearts feel they were meant to have been born a different race. A highly publicized trans-race case was discussed a couple of years ago in the U.S. and has made headlines again this week. The media is largely laughing it off, yet this has been a very real and lifelong struggle for this person. 
There was a demonstration on Parliament Hill last year from the "trans-abled" community, a large and growing community of people who feel very strongly that they should have been born disabled, some even altering their physical state to emulate the disability they identify with. 
In many definitions of the LGBTQ+, the "+" includes "otherkin," or those who identify as something other than human. This includes identities like "pixiekin" or "wormkind." Are these identities deserving of special protection in law?
The examples presented here are all irrelevant to Bill C-16.  The idea of a "trans-racial" identity, for one example, is arguable already protected within the fundamental protections of our Constitutions and laws.  The case referred to (Rachel Dolezal) is arguably deeply problematic, and we should be cautious about it.  I personally have not experienced any number of people who have tried to adopt a different racial identity in a manner that is analogous to the transgender experience.  Whether such a person would require additional legal protections over and above those already in existence in Canada has not been tested.

Identities such as "otherkin", for now, reside well within the world of individual fantasy.  Think it would be unfair indeed to even discuss the prospect of legal status for such identities today without a considerable body of research supporting these identities as needing such support.  Sure, Cosplay and Furdom are both significant subcultures which people engage in, but we have no evidence that discrimination and hatred substantially affect the daily lives of such people.

The concept of the "Trans-Abled" has been around for some time, and presents some significant ethical and practical difficulties for the medical community as a whole.  The legal aspects of this particular identity have only barely been touched upon.  Medical ethics has evolved considerably with respect to the treatment of transgender people based on the emergence of a significant body of evidence that shows quite clearly that the benefits of treatment vastly outweigh any downsides or ethical issues previously brought up.  In a few decades, we may well be having a similar discussion about protections for this community, but that is not what is before Parliament today.

For Senator Plett to invoke a "slippery slope" argument here merely demonstrates how flimsy his argument really is.


Senator Plett's arguments boil down to two or three basic points:
  1. He doesn't know what gender identity or gender expression "mean" in the legal sense.
  2. He's worried that legitimate discussion will be "stifled" by C-16.
  3. We might open the door to all kinds of identity based rights.
I would expect that the courts would turn to the wisdom of experts in the field such as WPATH to help them define the working use of the terms like gender identity and gender expression.  Like a lot of other concepts in law, it is difficult for lawyers to simply create a definition from whole cloth.  The fact is that the researchers who study such things have spent decades developing the definitions that they use, and the courts are well advised to use this expertise to assist them in their deliberations.  

As for stifling of debate, I think our existing body of human rights law and rulings makes it quite clear that such laws should not be used to mute legitimate debate.  For the Senator to argue that C-16 would result in such a stifling is simply to fail to understand the distinction between being an obstreperous, stubborn person clinging madly to your "right" to disrespect another human being and a legitimate, informed debate.  

Slippery slope arguments are, of course, never terribly persuasive.  Senator Plett's examples in this area simply demonstrate that he is unwilling to rationally evaluate his own assumptions about the validity and issues of discrimination faced by people he doesn't want to understand.  

To be sure, passing Bill C-16 will put before the courts some challenging cases.  We should recognize that this is often the case when we are dealing with issues that are far from "black-and-white".  This is why our judiciary exists in the first place.  Not all events in our world can be readily classified as "good or bad" (saving someone's life, good; killing someone is bad) - this why law, case law and an independent judiciary exist.  If there is one thing we have established it is that Transgender people do experience discrimination and hate on a near daily basis.  If that means we need to go through a decade or so of sorting out where the boundaries lie, so be it.  

No comments: