Law Matters John Carpay
Politically and philosophically, leading Canadian feminist Meghan Murphy and self-described “Christian truth activist” William Whatcott have almost nothing in common. Yet both have been taken to task for expressing the opinion that a biological male is not a woman and cannot be a woman.
Murphy was expelled from Twitter for “misgendering” JY, a biological male who self-identifies as a woman. JY had requested a “Brazilian” bikini wax from 16 different Vancouver-area estheticians who serve only female clients. JY then filed human rights complaints against these 16 women when they refused to provide this service.
Whatcott is being prosecuted under the BC Human Rights Code for distributing flyers criticizing Morgane Oger, the unsuccessful NDP candidate for Vancouver-False Creek in the 2017 provincial election.
Whatcott’s flyer expresses his concern about “the promotion and growth of homosexuality and transvestitism in British Columbia and how it is obscuring the immutable truth about our God given gender.” The flyer states that Oger’s DNA “will always be male, he will never have a uterus, and no amount of cosmetic surgery, fake hormones, or media propaganda is going to be able to change these facts.” Whatcott argues that transgenderism is an impossibility: “A male cannot ‘transition’ into a female, nor can a female ‘transition’ into a male. One can only cross dress and disfigure themselves with surgery and hormones to look like the gender they are not.”
Prior to election day, Anglican and United Church clergy issued a public letter denouncing the flyers as “hateful, hurtful and oppressive,” and as containing “false information” about “an accomplished woman who is engaged in brave and bold civic leadership.” They called on all people to “publicly condemn the actions and words of Whatcott as unacceptable.”
Questions about gender and transgenderism are the subject heated debates amongst medical doctors, psychiatrists, and other scientists, not to mention psychologists, theologians, parents, and the public at large. Oger and Whatcott have competing and irreconcilable opinions about what is true, as do all Canadians, about many topics.
But Oger was not – and is not – satisfied with allowing unsupervised public debate to continue freely. Oger believes in having the legal right to compel others to speak to him, and speak about him, as being female. Those who boldly assert that Oger is masculine and male can find themselves on the receiving end of a human rights complaint.
In a free society, debates about what is true or false are settled by citizens themselves, not by the government. Discussions about right and wrong are often not fully settled, and debate continues indefinitely. Through discussion and debate, there is an opportunity for truth to emerge, and for citizens to think critically.
In reviewing Oger’s human rights complaint about Whatcott’s flyer, the BC Human Rights Tribunal can use the coercive power of the state to settle the public debates about transgenderism on behalf of everyone, by ruling on the legality of the content of Whatcott’s flyers. Note carefully: the legality – not the truth – of the content of the flyers. When you face a human rights complaint generated by someone’s hurt feelings, you cannot call upon truth as a defense in those proceedings.
At the Dec. 11-17 hearing, Oger explained at length and in great detail that Whatcott’s flyer was very hurtful and offensive. The Tribunal expressly refused to hear testimony from expert witnesses as to whether Oger’s beliefs or Whatcott’s beliefs are true, or which beliefs come closer to the truth. To the Tribunal, truth is irrelevant. In fact, the Tribunal insisted that all participants in the legal proceedings refer to Oger as female.
When hurt feelings are given greater weight than the pursuit of truth, it becomes impossible to engage in the essential democratic discourse and debate that is necessary in order for truth to emerge from the clash of ideas. Freedom of expression is especially important during an election campaign. The public have a right to hear differing views on candidates and political parties.
Canada’s Charter respects the dignity of Oger, Whatcott, and all Canadians by protecting each person’s right to express opinions peacefully, run for public office, and not be discriminated against by government. For the state to compel people to say things they believe to be false, under threat of penalty, is a violation of human dignity.
Ultimately, Canadians will have to decide what matters more: the right to express your opinions in a peaceful manner, including unpopular and offensive ideas, or a legal right to be free from hurt feelings. We can’t have both.
John Carpay is president of the Justice Centre for Constitutional Freedoms, which intervened before the BC Human Rights Tribunal in the Oger v. Whatcott.
